论中国代位清偿制度的构建 - 以比较法为视角 -

Abstract

Before the provisions of the civil code of the people’s Republic of China are determined,the contents of liquidation subrogation are scattered in many law, After the promulgation of the civil code, China is faced with the following difficulties:How to effectively reflect the changes in the real interaction and how to connect logic system;On the other hand, how to resolve the conflict of rights、improve the protection of rights and refine the rules of rights. Liquidation subrogation refers to the transfer of subordinated rights, including relevant security rights, from the creditor to the liquidator in order to ensure that the liquidator obtains the right of claim from the debtor or joint debtor, when the debt is paid off by a third party.At this time, the liquidator exercises the right within the scope of claim, and the right of the creditor cannot be damaged by subrogation. At the same time, it’s right of subrogation to the debtor is also exercised to the guarantor.At present, the civil law of France, Japan and South Korea has made separate provisions on the system of subrogation, and divided it into arbitrary subrogation and legal subrogation.The former is subrogation by the way of assignment of creditor’s rights;The latter is paid off by a person with a legitimate interest, of course subrogation. Although Germany did not set it as an independent system, it also set the transfer of creditor’s rights in the form of scattered chapters. Compared with other civil law countries, China also has the situation of the third party’s repayment. In terms of the protection of the liquidator’s rights, the liquidator’s claim right after repayment is realized in the form of recovery. The affirmation of this right of recourse is not complete. Compared with other civil law countries, the system of subrogation is more advantageous in terms of legal logic and final effect. To perfect our country pay claims system, solve the problem of pay off people claims in our country, this article from the perspective of comparative law, through to the other civil law countries pay people subrogation system is analyzed, and combining with our country legal regulation, determine the build liquidation people the possibility of subrogation system in our country, The scope of the liquidator is determined, including the guarantor, the guarantor/issuer and the third person, joint debtor and clarify the subrogation in personal relationships between the subrogation of liquidation, the contact between China and other civil law countries at the same time compares and analyses the relevant system to pay off the human discharge sequence specific problems such as discharge ratio are also proposed.