The Research On The Derivative Litigations Of Subrogation Enforcement

This article focuses on the issue of derivative litigations of subrogation enforcement,and probes into the deficiency and perfection of the current design of derivative litigations system,based on the current legislation situation of subrogation enforcement system and the existing problems reflected by specific cases.Though the problems of derivative litigations exist in our country's judicial practice,there is no special litigation system which can link up with subrogation enforcement procedure at the legislative level.Constrained by the lack of legislation,it is difficult to reasonably deal with the legal relationship of the three parties in practice.Besides,these problems of derivative litigations are given less systematic analysis and discussion in academic circle.By comparing the legislations in France,Germany,Italy,Japan,Korea and Taiwan,we can find that the executing creditor,the executing debtor and the sub-debtor all have derivative litigations problems derived from the subrogation enforcement procedure with corresponding theoretical arguments.In theory,the executive creditor's right of action based on the preservation and collection of creditor's rights,the executive debtor's right of action based on creditor's status,and the sub-debtor's right of overdue objection based on procedural relief need,should be reasonably guaranteed and implemented in a feasible system.Futhermore,it is worth exploring that how could these suits together with enforcement procedure cooperate and be connected with each other in order to achieve the balance of interests.Therefore,on the basis of a comprehensive comparison of French attribution arrest procedure,German compulsory enforcement procedure of creditor's rights,Italian enforcement procedure of third party,Japanese enforcement procedure of creditor's rights,Korean enforcement procedure of creditor's rights and Taiwan's enforcement procedure of third party's creditor's rights in China,this article not only tries to find a breakthrough to improve our existing system according to the similarities and differences of the legislation,but also tries to sought the theoretical basis of system design in the discussion of relevant theories disputes,based on which the suggestions for system improvement are put forward.Without the preface and conclusion,the text includes 4 chapters,about 41000 words.Chapter ? mainly finds out the problems of derivative litigations of subrogation enforcement in China's current judicial practice by analyzing typical cases,and digs out the theoretical problems behind them which need to be solved urgently.According to the problems in practice and the current legal provisions,this chapter concludes the legislative deficiencies,which serves as a breakthrough point for the improvement suggestions in the following chapters.This chapter puts forward that the derivative actions of subrogation enforcement have three types: whether the executing creditor can sue the sub-debtor when the enforcement of the sub-debtor is not completed,how to deal with the litigation between executing debtor and the sub-debtor,and whether the sub-debtor can sue for objection.Chapter ? mainly explains and solves the litigation problems introduced in the preceding theory.First of all,through specific analysis of the reasons for prohibition of action and the plaintiff's qualification,recognize creditor's action of sub-debtor when subrogation enforcement is not terminated.Secondly,the right to of the debtor to sue the sub-debtor is affirmed by analyzing the effect of the distrain order and the performance order.Thirdly,through the analysis of the necessity of protecting the sub-debtor's right of overdue objection,the rationality of the sub-debtor's objection suit is demonstrated.Finally,the author makes a theoretical analysis on the issues of litigation concurrence and enforcement concurrence in subrogation enforcement.Chapter ? starts from the legislative cases of France,Italy,Germany,Japan,Korea and Taiwan,finds out the similarities and differences of each legislative case in the stage of subrogation enforcement,the enforcement of creditor's lawsuit,the enforcement of debtor's lawsuit and sub-debtor's lawsuit,and finds out the reference for improving subrogation enforcement.Chapter ? develops in line with the practical,legislative and theoretical problems summarized in Chapter I.Using the theoretical viewpoints deepened in Chapter II on related litigation issues,and combining with the reference model provided by different legislative cases in Chapter III,the author puts forward some suggestions for the improvement of subrogation derivative litigations in China.It mainly includes four aspects: construction of enforcement creditor's collection lawsuit,perfection of theoretical basis and system design of enforcement debtor's separate lawsuit,establishment of independent sub-debtor's objection lawsuit,coordination of lawsuit concurrence and enforcement concurrence.