Study On The Subrogation

Article 524 of the Civil Code of the People’s Republic of China for the first time makes the subrogation system a culture,which is of great significance both in theory and in practice.On the other hand,however,the subrogation rule cannot be fully defined by a single article of article 524.Its constituent elements,statutory effect,and connection with other systems in judicial practice are still prominent.This paper will examine the issues related to the rule of the subrogation from the perspective of interpretation theory.Article 524 of the Civil Code stipulates that one of the restrictions on which a third party has the right to perform on behalf of the debtor is that the third party has a legitimate interest in the performance of the debt.However,there are no detailed provisions on the criteria for determining legitimate interests and the scope of third parties who enjoy the right to perform on their behalf.For this problem,you can refer to the criteria for determining interests in the comparative method to type and define the scope of third parties with legitimate interests.In addition,in addition to legitimate interests,it is also necessary to clarify other restrictions required by the third party who enjoys the right of performance on behalf of the third party: if the third party has the intention of performing on behalf of the third party,the debt can be performed by the third party.Article 524 of the Civil Code makes it clear that a third party with legitimate interests has the right,but does not mention a third party without legitimate interests,however,a third party without legitimate interests has the practical necessity and feasibility of performing on its behalf.The lack constitutes a legal loophole.This article believes that Article 524 should be understood as follows: a third party with legitimate interests has the right to perform on behalf of others,but this does not mean that the subject with the right to perform on behalf is limited to a third party with legitimate interests.That is to say,for the subrogation without legitimate interests,although the law does not give them the right to perform on their behalf,it is not prohibited.So there has room for a third party without legitimate interests to perform in the context of Article 524 of the Civil Code.However,in order to avoid the arbitrary breakthrough of the principle of relativity of the debt,it is necessary to limit the performance of the third party without legitimate interests: first,the creditor is given the right to refuse,and also the debtor is also given the right to object;second,after the third party without legitimate interests performs on behalf of the In the event of the legal consequences of the transfer of creditor’s rights,it only has the right of recourse.Unlike a third party without legitimate interests,a third party with a legitimate interest enjoys both the right of recourse and the right of subrogation after performing on behalf of the debtor.The third party’s right of recourse is based on the basic relationship between the third party and the debtor,which is a brand-new right;while the right of subrogation is different from it.Article 524 of the Civil Code stipulates that the legal consequence of the third party’s performance is the transfer of legal creditor’s rights.The third-party subrogation is the academic appellation of the transfer of creditor’s rights,which is based on the third party’s substitute performance.In addition,because the partial performance of the third party will not put the creditor at a disadvantage,it is feasible to allow the partial performance of the third party.After the partial performance of the third party,the creditor’s rights incurred shall be inferior to the remaining creditor’s rights of the original creditor.It is import to research and analyze the connection between the third party’s performance system and other systems in the Civil Code.The first is the convergence with the system of creditor’s rights transfer.If the third party acts on behalf of the legal consequences of the assignment of creditor’s rights,the relevant rules of assignment of creditor’s rights shall apply.For example,the rules of notification,set-off and defence.Secondly,it is to link with Article 700 of Civil Code.The prohibition principle of creditor’s disadvantage should be applied in the third party’s performance system.Finally,the interface with the hybrid common guarantee system.Through the third party on behalf of the performance of the system to provide an interpretation path for the mixed co-guarantors to enjoy the right of internal recovery.