The Return Of The Rule Of Warehousing About The Creditor’s Right Of Sbrogation

Of all the systems in Civil Laws, the system of Creditor’s Rights of Subrogation is an important one. Of all the specific contents in this system, after the creditor exercising his rights of subrogation, the problem that the legal effects belong to whom is very important. The theory of traditional civil law stands for the Rule of Warehousing, and the main academics’views also agree about that, before the73rd article of The Contract Law of the People’s Republic of China stipulating the system of creditors’right of subrogation for the first time. However, it is changed before long by the20th article of The Supreme People’s Court’s Interpretations of Certain Issues Concerning the Application of The Contract Law of the People’s Republic of China (Part One), which takes the Rule of Directly Recompensed instead of the Rule of Warehousing. This judicial interpretation not only conflicts with some basic theories and principles of the civil law, but also is far from to achieve the desired effects in result of various obstacles in practice.Therefore, through this paper, the author, I mainly use historical analysis, comparative analysis and so on, to illustrate the rationality and effectiveness of the Rule of Warehousing. As we are in the process of establishing the Civil Code of China, it is hoped to make the principle on the issue that the legal effects of the creditor’s subrogation belong to whom back into the Rule of Warehousing, and I will also put forward some suggestions to perfect such a system.Chapter One:The Rule of Warehousing and the Rule of Directly recompensed related to the attribution of the legal effects of the creditor’s subrogation. In this chapter, I firstly makes a brief introduction and analysis of the creditor’s rights of subrogation and its attribution, and distinctly points out the difference between the Rule of Warehousing and the Rule of Directly Recompensed, which are constitutionally different in result of the debt liquidation from the second obligor should belonging to the obligor or the creditor who exercise the rights. Then by taking the Civil Code of France and Japan, and the civil law of Taiwan as examples for the outside method of observation, I confirm the legislation tradition of the Rule of Warehousing. Indispensably, we also need to understand the process of related legislation in China and the current legal provision, in other words, the judicial interpretation of the Rule of Directly Recompensed suddenly changed a direction, which is the starting point of this paper and the meaning of so-called return.Chapter Two:Comments mainly about the Rule of Directly Recompensed. To abide by this rule, the attribution of the creditor’s rights of subrogation belongs to the creditor, and the second obligor pays off the debts to the creditor directly. In this chapter, I analyze in detail the advantages and disadvantages of this rule. Though the Rule of Directly Recompensed shows the efficiency, it is lack of fair and equal value, especially strongly breaking the system function on preservation of creditor’s rights, violating the civil theories and principles such as jointly guaranteed debt and debt of equality. In my opinion, the serious damage should be questioned and criticized, and such fatal flaws make it can not become the rules of the effectiveness of the creditor’s rights of subrogation in our country.Chapter Three:Comments mainly about the Rule of Warehousing. To abide by this rule, the attribution of the creditor’s rights of subrogation belongs to the debtor and all what the secondary obligor pays off belong to the debtor, the creditor has no right to directly obtain the repayment.In this chapter, I analyze in detail the strengths and weaknesses of this rule to demonstrate its rationality, mainly from the angle of relations with the related civil theories and systems. This rule abides by the civil theories and principles such as jointly guaranteed debt and debt of equality, and it has many values itself, in addition, it co-ordinate with other relevant systems. Although there are some defects and shortcomings, but we can compensate for by designing some rules. Contrarily, its advantages give us confidence, and the connotation of nature determines it shall be used as the rules of the effectiveness of the creditor’s rights of subrogation in our country.Chapter Four:How to return and complete the Rule of Warehousing on the legislation. On the base of the detail reasons above, in this chapter, I put forward some legislative suggestions. First, we should cancel the20th article of the contract law judicial interpretation(part one), and clearly provide the effects of exercising creditor’s subrogation right belong to the debtor, which is a reasonable and effective ways to be back in the Rule of Warehousing; Second, we can set up some special rules to perfect this rule, for example:the creditor may exercises the cancellation right if the debtor improperly disposal what the secondary obligor pays off; the creditor can directly take delivery if he is the only creditor or debtors clear refuse to accept the liquidation, and so on.