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On the Perfection of China 's Subrogation

Author: MaJianRong
Tutor: WangWeiGuo
School: China University of Political Science
Course: Civil and Commercial Law
Keywords: Subrogation The Subrogation implement effect Subrogation perfect
CLC: D923
Type: Master's thesis
Year: 2005
Downloads: 463
Quote: 3
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Abstract

Debt Preservation of Subrogation * system is a breakthrough on the principle of debt relative to traditional civil law right of subrogation enriched the theory of the debt, and demonstrates good faith values. China's \The article of Subrogation system with the traditional system of start, the contrast between the differences and different, on the basis of analysis of theoretical dispute our right of subrogation exists and applicable in judicial practice, perfect of Subrogation system in China proposals and ideas. The first part of the article is the theoretical basis of the traditional civil law right of subrogation, general description of the legislative purpose, the system value. The legislative purpose of the right of subrogation is to revert to that \France, Japan, Taiwan, with the corresponding legislation of. The second part of the article is the comparison of the system and the traditional system of China's subrogation rights. Relative to the traditional civil law, of the right of subrogation performance in the legislative model is different from a system different from the binary system of legislative characteristics. In legislative system of the right of subrogation only be laid down in a special law of the law of obligations, greatly limiting the scope of application of the system. On the legislative content of subrogation rights system is relatively more rough, with traditional subrogation rights system compared to exist with a very big difference: legislative position in contract law, a contract to perform part of the purpose of the rights of subrogation is to achieve debt, the effect of vesting in creditors, the nature of the right of subrogation is the formation of the right to appeal, the scope is limited to Contractual Obligations, object limited money, exercise limited litigation. The third part of the article on the controversial theory of China's right of subrogation analysis focuses on the analysis of the effects of the implementation of the right of subrogation. Abolition of the right of subrogation to definitely send negative faction of view. Fact entity law of subrogation rights and procedural law of the generation of bit execution play with each other can not substitute the function therefore even if the mandatory implementation of law is more complete, the right of subrogation still its existence is necessary; on the right of subrogation nature of the problem, our contract law due to the provisions of times the debtor to the creditor directly settled by the court referee whom, the nature of the right of subrogation considered the formation of the right to appeal; effect on the right of subrogation to implement several theories in the analysis of the priority claim that the average allocation to said direct repayment. irrationality on the basis of the implementation of traditional storage rules \The article further analysis in the fourth part of our right of subrogation applies in judicial practice, the litigation including subrogation implementation of the system and the right of subrogation. Subrogation implementation of the system can only be applied to the implementation of the program, and the lack of convergence and coordination with the substantive law, the specific system content and the specific measures also lack therefore further improve necessary; subrogation rights litigation is a new type of litigation, Civil Procedure Law of the lack of appropriate procedural rules

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