On The Scope Of Creditor’s Subrogation Object

On the scope of object of subrogation, scholars generally believe that China’s system of creditor’s subrogation for the object of subrogation——"The money paid for the content of the creditor’s rights" is too narrow. But all views have no uniform. This is a controversial subject:from the think that claims with the value of the property content should be extended to the creditor’s rights, to the think that it should not be limited to creditor’s rights, the property right, should also be included in the scope of the object of subrogation right. Research on this topic, has great theoretical and practical significance to perfect the system of creditor’s subrogation, worth studying. This paper mainly uses comparison method, the general principle analysis, and case analysis. This paper is divided into four parts.I The Summary of the Object of Creditor SubrogationThis part mainly explains that the object of creditor subrogation right this paper discusses is the object the right exercises. Namely, the object of creditor subrogation is the right which the debtor fails to exercise, harming to the creditor’s rights; the creditor may subrogate it in his own name in order to preserve his own rights, briefly speaking, the debtor’s rights.II Elements of the Object of the Creditor SubrogationThis part analyzes elements of the object of creditor subrogation, and come to a decision that the object elements include, the debtor’s right, beneficial to the liability property, existing rights, not exclusively personal to the obligor’s right to the four elements.’The debtor’s right" is to distinguish the creditor’s right of subrogation with guarantor subrogation, insurance subrogation and any other subrogation." Beneficial to the liability property "is said relative to "the money for payment" in "interpretation of Contract Law (a)"."The money for payment" is beyond the property requirements. It not only asks property rights, further stipulates the payment form. This paper thinks that should not do this restriction to simplify procedures."Existing rights" requires rights can be subrogated must be the debtor’s exciting rights, if the rights belongs to a kind of reversionary interest or some powers and functions, such as the use, income, disposition and so on, should not be the object of creditor subrogation. In addition, the "legitimate right" and "existing rights" are listed as two elements by someone. The author thinks "legitimate rights" may not list as a separate element, the "existing rights" as an element is more appropriate."Not exclusively personal to the obligor’s right "shows that the debtor exclusive right cannot be as creditor subrogation object, and stresses the situation that assignment or inheritance is limited by statutory or agreement does not derive it cannot be subrogated in principle.III Discussion of the Scope of the Object of Creditor SubrogationThis part mainly analyzes the substantive rights whether they should be included in the scope of the object of creditor subrogation, and draws the conclusion:personal right, intellectual property and inheritance rights not conforming to the elements of creditor subrogation object should be excluded from that scope. In contract claims, in contract creditor’s rights whose classification criterion is contract object, the creditor’s rights non-monetary property for payment should be incorporated into the scope of creditor subrogation object. But contract creditor rights act as the payment, cannot become the object of subrogation right of creditor. In contract creditor’s rights which are classified as exercising form, breach of contract damages claims, the right of option, the right of exoneration, the right of offset and the right of cancellation object can become the object of creditor subrogation, but the right of perceptio should be excluded. In contract creditor’s which are classified as contract content the division, gift claims are excluded. At the same time, the "creditor’s right" in the law of contract interpretation shall be construed as including negotiorum gestio creditor’s rights, undue enrichment creditor’s rights and infringement creditor’s rights, except for creditor’s rights due to infringement of personal rights. In real right, ownership and usufruct cannot be the object of creditor subrogation in general, but some special creditor rights can subrogate ownerships or usufruct rights which interfere with the realization of the rights. Real rights granted by way of security cannot be subrogated normally, but if the secured creditor’s right is subrogated, the real right granted by way of security can also be subrogated.IV Analysis of the Restriction of the Scope of the Object of Our Creditor Subrogation and Future Legislative ProposalsThis part analyzes the causes of restriction of the scope of the object of China’s creditor subrogation and puts forward legislative suggestions.The innovation of this paper is, in combination with previous ideas, puting forward views on the controversial questions of creditor’s subrogation object elements and the scope of the object, such as the understanding of "existing rights ", the question whether the property can be subrogation rights object etc..