The Legislative Conflicts And Solutions Of Subrogation Performance And Creditor’s Subrogation

The system of creditor’s subrogation is originated in France. As a legal system that puts creditor as plaintiff and subordinate debtor as defendant, it was introduced as an additional system in substantive law to supplement the compulsory enforcement procedure. The procedure of subrogation performance generally stipulates that, in the Compulsory Enforcement Act or Civil Procedure Act of each country (region), under the objective of realizing claims of creditor, the target of the enforcement should be subordinate debtor that has legal, effective and matured claims with creditor. The similarity between these two systems is that both of them bring subordinate debtor into the legal relation between creditor and debtor thus to realize the settlement of claims of creditor by subordinate debtor. China first adopted the procedure of subrogation performance in Article 300 of Opinions on Issues Concerning the Application of Civil Procedure Law by the Supreme People’s Court in 1993. Later in 1998, the Supreme People’s Court provided further elaborations on this procedure in Regulations on Issues of Law Enforcement of People’s Court(Trial Implementation). In Article 73 of the 1999 Contract Law of People’s Republic of China the system of creditor’s subrogation was firstly adopted, which, different from the system of creditor’s subrogation of France, prescribes that results of litigation exercise belong directly to creditor.From studies of comparative law, usually a country does not adopt both creditor’s subrogation system and the system of subrogation performance in its law at the same time. Germany only stipulates “the compulsory enforcement of credit obligation and other property rights”(equals to the subrogation performance system of China) in the Section of Compulsory Enforcement Procedure of its Law of Civil Procedure instead of in its substantive law. France stipulates creditor’s subrogation in its substantive law, yet does not mention the compulsory enforcement of the credit obligation of creditor in procedural law. Countries and regions that adopt the system of creditor’s subrogation and subrogation performance are only Taiwan of China and Japan(through massive transplantation of law in modern times). It is beyond doubt that the simultaneous application of the system of subrogation performance and creditor’s subrogation will bring conflicts and overlaps in legal theories and juridical practices. In Japan, where the study of law is advanced, there are oppositions at the beginning of the adoption the system of creditor’s subrogation. On facing the legislative conflicts between the system of creditor’s subrogation and subrogation performance and through detailed analysis, it is not difficult to find that in the system of creditor’s subrogation the standard regarding debtor “negligent in exercising their matured claim” is too strict, the object too monolithic, and legal loopholes exist when subrogation proceeding is filed by multiple creditors. More importantly, the creditor’s subrogation system with Chinese characteristics is in conflict with the civil law theory, and the litigation status of creditor and debtor in the system of creditor’s subrogation is hard to resolve. These are all critical defects that deny the existence of the system, which calls for a substitution. In comparison, the settings in the system of subrogation performance are more reasonable. Thus it is a more reasonable approach to improve the system of subrogation performance as a replacement for the system creditor’s subrogation.