Research On Litigation Of Subrogation

Subrogation breaks through the principle of debt relativity. When the debtor delay in performance or idle in excising right to the secondary obligor, it protects the interests of the creditors, so as to maintain the transaction security. Subrogation system originated from Roman law and Germanic law, but first established in France Civil Code. Many countries（regions） in the world established subrogation system in succession. China stipulated it in the Contract Law in 1999. Substantive content and value must be reflected by the process of the lawsuit. So does the subrogation system. Contract Law about the provisions of subrogation ignores the realization of subrogation-procedure system, which called subrogation litigation. However,the provisions of the law and related Judicial Interpretation about the subrogation system is rarely discussed. Our country’s Civil Procedure Law is also lack of corresponding provisions. To realize the value of subrogation system seems difficult. We should try to clear the jurisdiction, the litigants, the objection of action and res judicata of subrogation in order to correctly apply and perfect China’s subrogation litigation.The thesis consists of preface, body and conclusion. The body part is divided into five chapters.The first chapter summarizes subrogation and its litigation. Firstly, introduces the concept and the character of subrogation and considers it as a kind of expectant right or maybe right; Secondly, draws out the concept and characteristics of subrogation litigation, compares it to other related subrogation litigation and surveys the status quo.The second chapter discusses the jurisdiction of subrogation litigation. Firstly, determines the nature of jurisdiction due to special geographical jurisdiction; Secondly, points out that the debtor and the creditors cannot sign the jurisdiction agreement or arbitration agreement for the subrogation litigation; Finally, coordinates the subrogation litigation jurisdiction and arbitration agreement: if the obligor and the secondary obligor sign the arbitration agreement before an subrogation litigation, the agreement can against the subrogation litigation in principle, but the debtor and the secondary obligor need to apply for arbitration within a certain period of time, otherwise considered as a waiver; Whereas, the agreement shall not be against the creditors.The third chapter is about the parties of subrogation lawsuit. Firstly, introduces the theory of qualified litigant; Secondly, analyzes the lawsuit position of the subrogation litigants and thinks that there is no controversy about the creditors as the plaintiff and the secondary obligor as the defendant. However, the position of debtor identifies as the third person who has no independent right to claim; Finally, in view of a suit of many creditors, whether it is a kind of normal joint action or necessary joint action, it depends on the debtor- secondary obligor relationship. When multiple creditors are sued, the after-lawsuit shall be accepted but stopped after the first trial, then makes decision according to the result of the first trial.The fourth chapter introduces the object of subrogation litigation. Firstly, summarizes the various views and their respective reasons about object of subrogation litigation in academics area. Secondly, presents my own views and reasons: there are two objects of the subrogation litigation. The main object is the debtor- secondary obligor relationship and the subordinative object is the creditor-debtor relationship.The fifth chapter discusses the res judicata of the subrogation litigation. Res judicata theory is one of the most advanced theory in the Civil Procedural Law. This part analyses the objective scope and subjective scope of res judicata about the subrogation litigation in detail. To explore the objective scope, I use the theory of the issue preclusion validity and think that the objective scope only refers to the main object of action; To explore the subjective scope, first introduces the related theory and then thinks that we can judge by the result of judgment to determine whether with the close attention to the debtor.