Research On The Dual Function Of Right Of Subrogation

The change of social reality and legal thought in the 18 th and 19 th centuries led to the relaxation of the principle of contract relativity which had been strictly followed since Roman law,The original function of subrogation is to mitigate the drawbacks caused by the absolute principle of contractual relativity.Since then,the subrogation system has developed independently in France and other countries following the French civil code.For example,in Japan,it has been promoted by precedents to form the DE facto priority compensation rule.In recent years,France,Japan and other countries have been revised the debt method,debt method amendment to explicitly give creditors subrogation to the priority of compensation with respect to the legal,Japan will in fact the priority rules bright culture,compensation for opportunity transformation of traditional subrogation system presents the following trends: one is the function appear differentiation,is no longer limited to the protection of creditor's rights;The second is to adjust the constitutive requirements,and the rules become more complex,including the weakening of non-capital requirements,the clarity and differentiation of the object,and the exclusion of claims without subrogation.The examples of the comparative law show that the development of subrogation system can be roughly divided into the establishment stage(legitimacy establishment)and the transformation stage(institutional benefit improvement),and the historical significance of the warehousing rule is that it constitutes the legitimacy basis of the traditional subrogation system.The legitimacy of the rule of priority compensation of subrogation in China remains to be proved,which leads to the opposition between theory and practice,fairness and efficiency,and between priority compensation and storage rule.The academic research perspective stays on the textual interpretation with legislative and judicial interpretation as the core.The lack of functional research perspective leads to the weak research on the legislative theory of subrogation in China,and it is difficult for the civil code to copy the existing rules of judicial interpretation to maximize the benefits of the subrogation system.From the perspective of functional differentiation,the system of subrogation in China should bear the dual function of both preservation and repayment,and stipulate the rules of warehousing and priority compensation.By distinguishing objects,the two kinds of rules are made to work separately.The advantage of "dualization mode" lies in that it can not only expand the scope of subrogation right object to realize the comprehensive protection of the creditor's interests,but also can quickly settle the debtor-creditor relationship on specific types of objects to realize the simple recovery of creditor's rights.Its characteristic lies in the diversification of legal effects,which are given different effects according to different types of objects.Under the framework of dual functions,the object of subrogation must be distinguished to achieve the differentiated legal effect.For the general object,return to the "rules of warehousing" comprehensively;For the special object,the mode of "direct attribution" is continued,and the priority effect of repayment is reserved only on the specific object of "due debt with monetary payment content".Along with our country in recent years,enforce the implementation effect of optimization,faster realize creditor's rights by subrogation the urgency and necessity of settlement are shrinking,the judicial organs in our country should be "narrowed the subrogation right to seek preferred payments effect" as the judicial policy goals,as the object and the special object in the constitutive requirements of subrogation resulting have other standards in order to realize the judicial policy goals.The design and explanation of the system of double function subrogation are given in the last part of the article.