The Legislation Development Of The Creditor's Right Of Subrogation In Japan And Its Reference To China

The Creditor's Right of Subrogation originated from the Rome law and the Germanic law,first established in the civil code of France,because France enforces the system deficiencies,the establishment of the Creditor's Right of Subrogation as a supplement.In Germany,Switzerland and other law enforcement is perfect,they haven't set up the system of the Creditor's Right of Subrogation.However,there are similar to Germany's the civil implementation of the system in Japan,not only from the French transplant the system of the Creditor's Right of Subrogation,and in the case,there's the Creditor's Right of Subrogation to extend(the Japanese scholar called the other usage of the Subrogation),enrich the contents of the generation of position power system.In China,before the Qing Dynasty are not have the Creditor's Right of Subrogation similar preservation system,most take the administrative and criminal means to preserve creditor's rights in the late Qing Dynasty.The imitation in Japan,the Civil Law draft of Qing Dynasty to the Creditor's Right of Subrogation provisions.In 1929 the national government in formulating civil code,for the first time in the legislation formally establishment the system.In China after the founding of new China has not established the system of the Creditor's Right of Subrogation,with the continuous economic development in china.,in order to solve the problem between enterprises"chain debts"," serial bonds"and other issues,in 1999 for the first time in Contract Law of the People's Republic of China establishes the Subrogation right system,and published Interpretation of the Supreme People's Court of Several Issues concerning the Application of the Contract Law in the same year in china make detailed explanation.But due to the initial formulation and lack of experience in judicial practice,making the system in legislation and the specific elements there are many difference between Japan and other traditional the Creditor's Right of Subrogation right the system of national characteristics,summed up the following main points: 1,The scope of the object is too narrow.China limited the object of the Creditor's Right of Subrogation in the payment of money due debt.2,The creditor can only be exercised through litigation.In the contract law,the creditor's right of subrogation can only be restricted by the national public power.Greatly limits the creditor's exercise freely.3,Ignore the protection of the debtor and the third interests of the debtor.Our law stipulate that the debtor loses his right to dispose of the property of the third party.And,the law is not clear whether the debtor will participate in the subrogation litigation.For the Creditor's Right of Subrogation rights,the provisions of China third people only to the creditors.Compared to the provisions of our country in Japan,the object of the Subrogation did not do too many restrictions,the provisions "all rights,can be the object of the Creditor's Right of Subrogation,as in expanding the scope of the Creditor's Right of Subrogation object,to expand the scope of debt preservation,make people more assured for the commercial transaction,promoting the flow of wealth.For the right of the Creditor's Right of Subrogation of the creditor,Japanese law can not only through litigation exercise,can also exercise directly to third people.Our legislators considered by the referee to confirm the right of the Creditor's Right of Subrogation in the legal relationship of laws can reduce disputes,so the legislation provided only through litigation to exercise.But with the development of market economy,the economic activities of fast and efficient requirements are increasingly high,obviously,only through litigation the Creditor's Right of Subrogation may make the original can be successfully obtained by the creditors claims defendants tired,also increased the burden of the third,a waste of judicial resources.Compared with China's restrictions on the rights of the debtor when the Creditor's Right of Subrogation after the legal provisions and the neglect of the interests of the third party,for the protection of the rights of the debtor and the third is the largest part of Japan obligation law.At present,China has completed the formulation of the general principles of civil code,the next will start the codification of the civil code.Whether the creditor's subrogation system will be classified as legislators or contract creditor's rights,I hope that through this comparison and discussion on the day of the creditor's right of subrogation can provide some suggestion to revise the Creditor's Right of Subrogation in China in the future.