Study On The Litigation Of Subrogation Right

This article, regarding the nature of subrogation analysis as a starting point, discusses a series of problems, such as the possibility of subrogation of litigation filed to the mortgagee(i.e. the civil litigation right)?the subject of litigation of subrogation litigation?the form of action of subrogation litigation and res judicata, in order to protect the mortgagee's rights of subrogation to achieve to the maximum extent.In addition to the introduction and conclusion, a total of four parts:Part 1: The question putting forward. For the right of the person who is in charge of mortgage to exercise the mortgage right is often lost because of the loss of collateral, in order to guarantee the rights of the mortgage holder and not to make the establishment of the mortgage right to become an empty talk, "Property law" has set up a corresponding system of subrogation. But entity of subrogation system provisions are too generalities, and there is no parallel matching procedure system, resulting in the judicial practice for the understanding of subrogation is multifarious, reflected in the matter of the specific subrogation of litigation procedure also appeared such as the party's litigation status results of judgment, confusion and other issues. In in this part, the author quoting an actual case as an example, through the analysis of the case itself and judging the results, summarizes some common problems in the current judicial practice on the litigation of subrogation right: firstly, whether the mortgage is entitled to the right of subrogation in the proceedings of the right of subrogation in litigation; secondly, if the mortgage right is entitled to claim the right of subrogation of the right of subrogation, what will be the status of the party in the lawsuit filed by the mortgage; thirdly, after the mortgage of the right winning the decision,what will be the objective scope of the res.Part 2: The litigation of subrogation right. First of all, the right of subrogation is summarized. Relationship of subrogation right and litigation of subrogation is as follows: subrogation right is the entity and content, while litigation of subrogation is procedure and form. Research on the right of subrogation litigation must comes to discussions of subrogation right. There are many problems in the judicial practice of subrogation litigation, one of the fundamental reason lies in the fact that the right of subrogation on the entity level is not profound and lasting. Therefore, in this part, the author makes a general study on the right of subrogation right and research the entity rules and the nature of the subrogation right. Secondly, an overview of the right of subrogation litigation is summarized. Based on analyze of judicial practice of subrogation of litigation, the author make a new conception of subrogation of litigation. To avoid readers make confuse of the two conception the author discusses the characteristics of the subrogation litigation from the angle of difference between subrogation litigation.Part 3: The right of action when the subrogation right holder file a lawsuit of subrogation litigation. The author discusses the right of action when the subrogation right holder file a lawsuit of subrogation litigation;subrogation right shall be realized through certain procedure which the subrogation right holder file a lawsuit of subrogation litigation and litigation procedure is on the premise of the parities possess the right of action; from view of constitutive factors of action right,analysis and confirm subrogation right holder is entitled to the right of action before and after compensation made by guarantor. Before guarantor has made a compensation, subrogation right holder have the right of action come from dispute between compensation obligator, after guarantor made the compensation,the guarantor is entitled teh right of action either.Part 4: The object of litigation of subrogation. This part deals with the discussion on the subject matter of subrogation right litigation. For the right of subrogation to the right of subrogation of the right holder, the object of litigation is the legal relationship of guarantee real right. According to the new substantive law theory, the the object of litigation come from security interests holder start a lawsuit against reparation obligator consist of legal relationship between security interests holder against guarantor and security interests holder against reparation obligator.Part 5: The legal status of the parties in the litigation of subrogation right. In this paper, the author discusses the legal status of the parties in the litigation of subrogation right. First study the legal status of the parties in the judicial practice, and analyzed its advantages and disadvantages, and then on the basis of such analysis to proposed a feasible way to determine the litigation status of the parties; especially point out that guarantor and reparation obligator should be the co-defendant in the lawsuit of security right holder against reparation obligator.