The Amendment Of Creditor’s Subrogation In Japan And The Enlightenment To China

The relationship between debt and the principle has no effect against the third person,but in order to prevent the loss of the debtor’s liabitity propery and damage the creditor’s rights, The relationship between the debt of the third person can take legal measures to protect the creditor’s right. This is the debt preservation system. The creditor’s right of subrogation is one kind of. It focuses on the debtor’s negative behavior, rather than the aggressive behavior of the property when the realization of the rights of the debtor is indolent in exercising its due creditor’s rights and harm to creditor’s right."Contract Law" promulgated in 1993by the general chapter and followed the introduction of judicial in terpretation of creditor’s subrogation provisions, bus also to fill the long blank in our country on this issue. However due to the special social background the system in the legislative style and the specific element needs to improve. China is formulating civil code, and the Japanese debt basic perfect opportunity. In this paper, through the provisions of the subrogation system of Japan’s creditors to list and discuss, using the method of comparative study to analyze the existing problems of the system in China And changes in the system of subrogation rights of Japanese creditor to China’s legislative enlightenment. This paper is divided into four parts:Part one is an overview of the creditor’s right of subrogation. This part mainly expounds the origin of the concept of the right of subrogation of creditor, as well as the legal value.Part two is modification of the system of the right of subrogation in Japan. This part firstly introduces the situation of Japanese debt. Japan’s Legislative Council civil law branch from 2009 to organize the work of revision. After six years, in the public comment and held a number of meetings on the basis of the Draft Outline in 2015. The capital of the legal capital to maximize respect for the draft to form the basis of the bill to the Congress. Secondly this paper introduces the system of creditor’s right of subrogation in current law of Japan. Mainly from the elements、functions、features and other aspects of the exposition. It also demonstrates how to apply the right of subrogation to preserve the specific creditor’s rights through a typical case in Japan. Finally the article lists the specific law to reproduce the system of the creditor’s right of subrogation. Mainly repeal the subrogation system of litigation. limit the scope of the exercise of the right of subrogation and dear the status of the secondary debtor. Don’t limit the repayment of the debtor’s behavior and give the debtor to participate in the Chance to participate in subrogation.Part three is the present situation of the system of creditor’s right of subrogation in China. This part firstly describes the general situation of our country’s legislation. Secondly it discusses the characteristics and existing problems of the system of the right of subrogation in China. It has mainly been the subrogation and the preservation of creditor’s right can only be money claims and must exercise the right of subrogation and so on.Part four is the change trend of the system of subrogation right of Japan’s creditor to China’s legislative enlightenment. On the basis of summarizing the previous chapters, this part puts forward the legislative enlightenment of this system in our country, mainly from the perspective of the right of subrogation in Japan. The subrogation execution procedureas the preprocedure of subrogation system distinguish the function of the right of subrogation,and the inspiration of the preservation acts in the preservation of creditor’s rights.It should be specified in the case of the preservation act, even if the creditor’s right is not to the period, the creditor can also exercise the right of subrogation to protect the debtor and the secondary debtor’s enlightenment. If the exercise of the right of subrogation restricted and the status of the debtor is clearly defined as the right of subrogation. Admit the litigation lay out of the right of subrogation to rule out the possible damage to the interests of the debtor. The creditor’s right of subrogation should be used in other fields to try to expand the scope of creditor’s rights in our country. It’s very necessary for the flexible application of creditor’s subrogation system.