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Research On The Res Judicata Of Creditor’s Litigation With Subrogation

Posted on:2015-04-18Degree:MasterType:Thesis
Country:ChinaCandidate:J W LiFull Text:PDF
GTID:2296330431981695Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
The73rditem of Contract Law and the relevant judicial interpretations have established the system of creditor’s litigation with subrogation, which requires that the subrogation should be performed through litigation, and created a new litigation form——the litigation with subrogation. But For the reasons that the system has abandoned the traditional relevant principle, at the same time, the litigation with subrogation refers three parties and three kinds of legal relationship, which brings about greater differences in the study of the object and res judicata of creditor’s litigation with subrogation.This paper is divided into three parts. The main body of content is the second chapter to the third chapter.Firstly, the disputes and problems are introduced through the case of subrogation mainly, it is the subject of litigation and the parties, the binding effects of the relevant legal relationships of the case.The second part of this article presents object of action of litigation with subrogation in detail, which includes related theories of subrogation——the theory of one object and theory of two object, and on the basis of analyzing the theory of one object and theory of two object, the object of litigation with subrogation is the creditor’s claim to subordinate debtor.The third chapter is the core part of the article. Firstly the author introduces the main academic views, then analyzes and discusses the res judicata of litigation with subrogation through a case comprehensively. Although the subrogation which is the object of action is restricted by the judgment, the the problem is that the legal relationships between creditors and debtors and legal relationships between debtor and subordinate debtor do not belong to the object of litigation with subrogation, they are not restricted to the judgement of litigation with subrogation, it is easily to cause the abuse of litigation or two different judgments. Therefore, in order to resolve the problem, I suggest that by applying the theory of "issue preclusion" and "procedure guarantee" to analyze the issue of the res judicata to the three parties in the cases of debtor’s participation and non-participation from the perspective of winning or losing a lawsuit.Finally, the author puts forward relevant suggestions to improve the law situations of the res judicata of subrogation to resolve the disputes that is arised by the res judicata of subrogation in judicial practice. The main is to protect the debtor’s right of participating and the substantive and procedural rights of three parties in the subrogation fully.
Keywords/Search Tags:Litigation with subrogation, Object of action, Res Judicata, issuepreclusion, Procedure guarantee
PDF Full Text Request
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