Reflection On The Value Of Subrogation System

This study aims to reflect on the value of subrogation system from a judicial practice perspective, then discuss the necessity of the system in China’s legislation. For the study of the topic, the authors followed the legal research path from questions, analyze and solution. Specifically, the structure of this thesis includes four main parts: legislation, judicial, the theory of law and recommendation. As following:Part l,on the basis of analyzing the relevant legislation in the countries of subrogation, the author summed up the commons and differences of subrogation among various countries and by the methodology of comparative study and addressed the reason of these difference, thus indicating the substance of the difference of subrogation are due to the different understanding of the principle of equality, property rights of subrogation, relativity of obligation and the objective of subrogation (1.1). After comparative analyzing, the author began to introduce the system and rules of subrogation in China, pointed out that the characteristics of subrogation, the difference with other countries and the existing legislative issues(1.2).Then, based on comparing the above, the author outlines the key questions of subrogation system in the legislation (1.3)Part2, the author elected two most representative case studies and gave introduction of their trials, in order to sum up the problems of subrogation in the judicial system (2.1), combined with the status quo of China social survey done previously, to analyze the practice of subrogation and to assess the vaule of the subrogation system in China(2.2), then, summarized in the problems of subrogation in the judicial practice (2.3)Part3, the author examine the value of the subrogation system from a theoretical point of view and reflect on it from three parts:there are some conflictions between the subrogation system and other civil theories (3.1), imbalance of value(3.2)as well as have the same function with the system of security interest (3.3), then the author draw conclusions that the advantages of subrogation system outweigh disadvantages and the value of law is negtive.Part4, the author suggest that the legislation should be repealed the subrogation system, the main reasons including:the purpose of the subrogation is hard to come true (4.1), the subrogation still be encountered the resistence of enforcement (4.2), Only combination of security interest in the system and a complete portfolio of civil enforcement proceedings, can really play the full realization of the purpose of security claims, therefore, we only need to complete the civil enforcement, no need to rely on the subrogation system to make up (4.3)Obviously, this study mainly stays in the field of civil substantive law, as to how to improve our civil enforcement measures involving issues related to the Civil Procedure Law, would be discussed in future studies of the author.