A Study on the Litigation of Obligee’s Right of Subrogation in Mainland China

• Main Author: 余泰鑫 YU,TAI-HSIN
• Other Authors: 黃陽壽
• Format: Others
• Language: zh-TW
• Published: 2019
• Online Access: http://ndltd.ncl.edu.tw/handle/d39k8v

碩士 === 東吳大學 === 法律學系 === 107 === Abstract The Contract Law of Mainland China which stipulated the obligee’s right of subrogation for the first time was promulgated on May 1,1999. And then the Supreme People’s Court quickly created an unique obligee’s right of subrogation (the“Obligee’s Right＂) with issuing the“Interpretation of Certain Issues Concerning the Application of the Contract Law of People’s Republic of China (1)＂(the“Interpretation of the Contract Law (1)＂) on December 19,1999. According to the Article 20 of the Interpretation of the Contract Law (1), obligee has the right to claim his/her obligor’s obligor to settle the obligee’s claim after exercising his obligee’s right of subrogation, and thus obligor’s debt and its obligor’s debt are extinguished, unlike those adopted by France, Japan and Taiwan. Through analyzing and reasoning the essential condition and legal effect of the Obligee’s Right, legal defenses against it and the relationship between these three, I think that the foregoing unique legal effect of the Obligee’s Right results in many substantial changes in its own essential conditions and legal effect different with those adopted by France, Japan and Taiwan. And also it results in some inconsistencies and contradictions and in its own legal system. For nearly 20 years, all the People’s Courts have been exploring how to verdict in a case of the Obligee’s Right and have been making attempts to develop legal opinions of the Obligee’s Right in practice. And there are so many researches conducted and made in academic. Therefore, there are many disputes and different legal opinions about the Obligee’s Right in practice and in academic. The Second Version Draft of the BookⅡContract of Civil Code of Mainland China (the“Second Version Draft＂) was promulgated on January 4, 2019. The Second Version Draft shows the content of the Obligee’s Right submitted to the Standing Committee of China's National People's Congress for reviewing. On the one hand, the application of the Obligee’s Right on the object will be extended to preservation and right other than claim in the future. On the other hand, it still retains one of the existing legal effect, the Article 20 of the Interpretation of the Contract Law (1) has stipulated, which means obligee has the right to claim his/her obligor’s obligor to settle the obligee’s claim after exercising his obligee’s right of subrogation. On the other existing legal effect, a legal opinion about the legal effect of the Obligee’s Right in a verdict made by of the Supreme People’s Court has been adopted, which means obligor’s debt and its obligor’s debt are extinguished after the verdict has the force and obligor’s debtor has made payment to the obligee, rather than after the verdict having the force. In my view, however, the Article 326 of The Second Version Draft still has the same problem as the Article 20 of the Interpretation of the Contract Law (1) has, which means in case that one of the obligor’s debt and its obligor’s debt is not paid in money, it can’t be happened for the court to verdict that obligee has the right to claim his/her obligor’s obligor to settle the obligee’s claim without the appraisal in the civil proceedings, regardless of unfair and unjust results. In the legislation, I suggest that the Third Version Draft of the BookⅡContract of Civil Code of Mainland China can set out two models of different legal effect of the Obligee’s Right in the next review. In case that either the obligor’s debt or its obligor’s debt is not paid in money, the obligee can receive from obligor’s debtor the prestation or the money on behalf of the obligor, and the obligee shall hand over it to the obligor rather than settling his/her claim, unless consent is obtained from obligor or the obligee is permitted in the enforcement procedures. In another case, both obligor’s debt and its obligor’s debt are paid in money, obligee has the right to claim his/her obligor’s obligor to settle the obligee’s claim after exercising his obligee’s right of subrogation, and thus obligor’s debt and its obligor’s debt are extinguished. Key words：contract law, obligee’s right of subrogation, Mainland China, inconsistencies and contradictions, draft of the BookⅡContract of Civil Code, the Supreme People’s Court, preservation, claim.