중국법상 채권자 대위권의 행사 효과

Abstract

The effects of the creditor’s subrogation rights under Chinese law have their uniqueness compared to the traditional principles of subrogation. According to Article 537, Paragraph 1 of the *Civil Code*, after a creditor exercises their subrogation rights, the debtor’s counterparty does not fulfill their obligations to the debtor as in traditional theory, but directly to the creditor. Furthermore, after the creditor accepts the performance, they can retain the property given without having to return it to the debtor within the scope of the claim. There are two major controversies in the Chinese academic community regarding the substantive content of this article: one is how to define and describe the effects of the exercise of a creditor’s subrogation rights under Chinese law; the other is how to interpret the rationale or source of this unusual effect. Chinese scholars have proposed several interpretive theories on this issue, but a consensus has not yet been formed. This article will mainly analyze and demonstrate these two issues and draw conclusions. The Chinese academic community generally describes the effect of the creditor’s subrogation rights as “direct compensation,” but a considerable number of scholars also call it “priority compensation.” The concept of priority compensation is somewhat misleading. From a legislative perspective, subrogation rights under Chinese law do not have the effect of priority compensation. Scholars who use this concept to summarize the effects of exercising subrogation rights do not actually advocate that subrogation rights have priority in terms of rights; their explanation is closerto direct compensation or de facto receiving compensation before others. Moreover, the description of direct compensation also cannot fully summarize the effects of exercising subrogation rights, which should be divided into direct effects and indirect effects. Since the effects of exercising subrogation rights under Chinese law do not follow the traditional “put into the warehouse” rule, the Chinese academic community has proposed four different interpretive theories to explain the substantive rationale of the effects, but all four theories have certain flaws and cannot provide a perfect explanation. Due to the peculiarities in legislation, interpretive theories must take into account both the purpose of realizing the claim and the means of subrogation. Therefore, the offset theory is relatively the optimal solution. However, it is still necessary to note that with the limited expansion of the object of a creditor’s subrogation rights under the *Civil Code*, different types of claims can theoretically become both the secured claim (creditor’s claim against the debtor) and the subrogated claim (debtor’s claim against the counterparty). Therefore, there may be situations where a monetary claim serves as a secured claim and a specific claim serves as a subrogated claim, and the two are difficult to offset each other. In this situation, either the Supreme People’s Court continues to interpret the object of the creditor’s subrogation rights restrictively through judicial interpretations, or it can only interpret based on the general effect of a creditor’s subrogation rights, that is, adopting the “put into the warehouse” rule. At present, neither the Chinese academic community nor the judicial authorities have reached a unified conclusion on this issue, and further research is needed.