Research On The Litigation Of Subrogation

According to the "Contract Law" and related judicial interpretations implemented by China on October 1,1999,when the debtor succumbs to exercising its due debt to a third party and satisfies the lawful rights of the creditor,the creditor may In his own name,he requested the court to protect his subrogation.Based on the above,the creditor's right to exercise the debtor's claim on behalf of the debtor is called the subrogation right.As far as the way of subrogation is exercised,in the civil law jurisprudence tradition,there are two ways to request the court to judicially protect through the independent exercise of creditors and through litigation.However,China's Contract Law clearly stipulates that the exercise of subrogation rights should be Strictly exercised in litigation,the concept of subrogation litigation came into being.However,the successive problems are that according to the Interpretation of the Supreme Court on the Application of Certain Issues in the Contract Law of the People's Republic of China(1)(hereinafter referred to as the "Explanation of Contract Law(1)"),the relevant system of subrogation in China is In legislation,it has innovatively broken through the setting of “incoming rules” and at the same time gave creditors the right to priority compensation.The innovation of the substantive law system makes the system of subrogation in China quite different from the provisions of the traditional civil law.At the same time,the difference in substantive law is further reflected in the litigation field and the litigation status of each party.Differentfrom the scope of the res judicata and the expansion problem,there are many contradictions that are difficult to follow the traditional procedural law.In addition,in the legislation,China has further stipulated the relevant procedures for subrogation.The procedure is also closely related to the subrogation system itself,thus correctly defining the characteristics of the subrogation rights in China,and thus the subrogation The importance of the concept of rights litigation is self-evident.Although,in view of the current research on the subrogation litigation system,the academic circles in China have carried out detailed analysis on some of the problems from a certain angle,such as the litigation status of the litigant,especially the debtor's litigation status,and the subrogation litigation judgment.The scope of the res judicata has been discussed,but in general,most of the litigation targets are not accurately grasped,but directly based on the original subrogation litigation theory;and the original subrogation litigation theory and Institutional innovation in China's substantive law has produced a lot of discrepancies.It has followed the original theory of litigation,and on this basis,it is slightly far-fetched to analyze the litigation status and the res judicata of the parties.Therefore,the author will first determine the litigation target of the subrogation based on the background of the innovative characteristics of the subrogation priority,further aiming at the litigant status of the litigant and the protection of the relevant litigation rights,and whether the scope of the judging power is expanding.Systematic explanation.Based on the above research background,the author intends to define the nature of the subrogation right from the difference between the nature of subrogation rights in China and the traditional civil law countries,so as to accurately grasp the litigation subject and explore the original "one litigation subject" and "two litigation".The standard said "the drawbacks of existence,on this basis,put forward the proposal of the subrogation relationship as the subject of litigation.In addition,the author will also focus on the subrogation lawsuit,and analyze the eligibility of the creditor to become a legitimate plaintiff under the party's eligibility theory,and thus the debtor's litigation status and related rights protection,rights restrictions Analyze together with issues such as obligations.At the end of the article,the author intends to expound theissue of the expansion of the power of subrogation,and introduces several theories that have been formed since the long-term development of Japanese scholars.On the other hand,the debtor said that it is reasonable,and on the other hand,it demonstrates the defects of Article 18 of the Interpretation of Contract Law(1)from the perspective of the subjective scope of the judgment,and at the same time strengthens the argument against the subrogation.On this basis,in order to balance the value conflict between the protection of the rights of the parties and the improvement of judicial efficiency,the author puts forward the proposal to introduce the theory of the effectiveness of the disputes,in order to benefit the theoretical perfection and practical operation of the creditor's subrogation litigation.