The Subrogation System In China

Modern in France, the original purpose of Subrogation is to make up for the lack of France in enforcing laws. To save the debt as a starting point, for the later legislation,it had a profound impact, and to the traditional civil law countries such as Japan, Taiwan, and region to follow setting up. Subrogation is affiliated to the debt’s protection, you must carry on the function of the security system, to prevent unnecessary reduce the debtor’s property, which requires the debtor shall strictly abide by its between creditors and the stipulations of the creditor’s rights debt, may not be in vain breakthrough, namely adherence to the relativity of debt. Many creditors at the same time, in order to ensure the creditor’s rights to fair to payments in the future, "rule of going into strongbox" was born, this is for the core of the Subrogation system in continental law system countries. However, the mainland legal system countries also have not been used in this system, such as Germany, Sweden, these countries because of its relatively complete the execution of the law, that within their own legal system has a good cohesion, include debt protection function, so the Subrogation is redundant. So, for Subrogation system of "noisy". Enforce the law the contents stipulated in the mostly fulfill the debt, its content is how to eliminate the creditor’s rights. Embarks from the exercise of Subrogation function to save the debt, the exercise of the results for the preservation of creditor’s rights, so that subsequent performance. Therefore, the existence of Subrogation is necessary, it is also one of the important reasons for the introduction of the system in China.Our country "contract law" in 1999 began to set up the right of Subrogation, but different from the traditional Subrogation system, our country did not use "inbound rules". On the contrary, based on the specific situation in our country, the effect of exercise of Subrogation directly regulations direct payments to creditors right of the obligor. It omitted the repayment of the debtor of the link, convenient to some extent in the judicial process, but also convenient to its creditor’s right of recourse against the creditors; In addition, the right of the obligor directly to creditors, made of "power sleep" not relief, solved on "rule of going into strongbox" could produce "free-rider" phenomenon, conform to the principles of efficiency, is for the one big characteristic of Subrogation system in our country.Alienation, however, because our country adopted the "rules of warehousing" Subrogation, though to some extent, overcome the disadvantages of the traditional Subrogation, but there is no doubt that destroyed the original balance on the structure and the system of Subrogation, the Subrogation system in China, such as qualitative, in program on cohesion and other problems, even in the academic circle has had a major problem: to solve the problem of the nature of the Subrogation and constitutive requirements, the introduction of offset point to explain, but the interpretation of the results not only failed to manage a power of the nature of the problem, in the qing dynasty led to new problems, such as the constitutive requirements of Subrogation chaos, object range narrowed, questioned the meaning of Subrogation of the judicial practice.The article is based on the significance of agreement to the right of Subrogation. Returning to the "rule of going into strongbox", the article tries to correct the Subrogation’s system of China in field of nature and procedure. Meanwhile, the article also contradicting the viewpoint of offset in the Interpretation Theory. The viewpoint of countervail has created new problems, such as chaos in the elements, the range of the objects is narrow, which makes difficult in the practice of Justice. The only way to solve the issue is to reference the rules of France and Japan.The article is insisted of three parts. The first part is telling the evolution of Subrogation in the countries or areas around the world. Although Subrogation is belongs to debt preservation, it doesn’t against the relativity of debts, and it balances the equality of debts according the "rule of going into strongbox". Japan and Taiwan area are the same to the French legislation in Subrogation. However, German and Sweden doesn’t adopt the Subrogation system. They have taken the rules alike "rule of going into strongbox" in the enforced law, which has the same legal effect as the "rule of going into strongbox".The second part is talking about the status and difference of Subrogation in China. Our country has set up the system of Subrogation in case of solving the efficient problem of chain debts and serial bonds. Thus, there are features of high efficiency, preventing the "hitchhiking" in our law.The third part describing the disadvantages and solution in our system of Subrogation. The system of Subrogation hasn’t obey the "rule of going into strongbox". Thus it can’t explain the balance between the relativity and equality of debts. The key to solve the problem is return to "rule of going into strongbox". However, the Interpretation Theory can’t solve the problems, which means the viewpoint of offset has its shortages. This makes legislation be the only solution.