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Right of Subrogation System Research

Author: JiHongGuang
Tutor: WangLiPing
School: Shandong University
Course: Civil and Commercial Law
Keywords: Contrast Law conservatory measures system right of subrogation litigation
CLC: D923
Type: Master's thesis
Year: 2008
Downloads: 214
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Abstract

Right of subrogation system is an ancient civil legal system acknowledged formally in French Corpus of Civil Law at the soonest. China has used the system for reference in Contrast Law. The thesis has analyzed the origin, character, element, authority exercising, legal validity, and the comparison of the related systems of right of subrogation of the creditor to discourse upon the characteristic of the right of subrogation formulated in Chinese law. The thesis has given some advice on consummating China’s right of subrogation system. In author’s point of view, right of subrogation system is the breakthrough to relativity of arrearage with the relationship of principle and flexibility. Right of subrogation is not the inherent right of creditor’s rights, but the secondary right which is also the entity right with its characteristic right pattern of right of formation and claim contents. The function of right of subrogation is to take conservatory measures in creditor’s rights to lead the party to exercise his rights actively. This would make up the deficiency of legal means. Compared with foreign right of subrogation system, China’s creditor’s rights system has its own characteristics in pattern, object, exercising means, effectiveness, legislation aims and elements. The establishment of right of subrogation should include the following 5 elements: the legal creditor’s right and debt between the creditor and debtor, unable to discharge the debt within the promissory period, debtor’s slack in exercising his right as secondary debtor passively, creditor’s right damaged, adequacy of the object of right of subrogation. The exercising of right of subrogation is involved in the creditor, debtor and the secondary debtor to establish the relationship of rights and duties relatively, which also has influence on the other creditor while the majors are the creditor and the secondary debtor. To creditors, the right of mediation, accommodation, admission of facts has been restricted. To the secondary debtor, the exercising of rights of pleadings should be solved in the light of concrete conditions. There are some differences among right of rescission system, assignment of a credit system, right of exercising subrogation system, right of representation system, right of recourse system with right of subrogation system, and we should differentiate them. The right of subrogation system in our country has made great breakthrough to the traditional right of subrogation system. On the other hand, there still exit area to be consummated such as the object range and patterns. We should reconstruct the right of subrogation system with the use of foreign right of subrogation system for reference. Concretely speaking, we should validate the rights and duties of creditors and party while exercising the right of subrogation to set up auditing mechanism to creditors and debtors, thus consummating the frame of right of subrogation system. We should also enlarge the right range of right of subrogation, and make laws to validate subrogation hold behavior to exert the hold function of right of subrogation system.

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