On the expansion of the object of creditor's subrogation right.

Abstract: There is a great difference between the creditor subrogation system and the traditional subrogation system in China, and its establishment conditions, object, compensation rules and so on are different from the traditional subrogation system in French and Japanese civil law. The academic circles have debated whether the scope of the object of creditor's subrogation right should be expanded and the scope of expansion, but failed to reach a consensus. The scope of the object of creditor's subrogation is related to whether the function of the system can be realized and whether the rights of creditors can be guaranteed, so it is necessary to discuss it. This paper uses comparison, case analysis and other methods, combined with China's existing legal system to study.

Keywords: creditor's subrogation; preservation of debt; liability property

There are great differences between the creditor's subrogation system in our country and the creditor's subrogation system in the traditional civil law, one of which is the difference of the object, and the object scope of the creditor's subrogation right is limited to the creditor's claim with the content of money payment, which is very narrow compared with the traditional system. This paper intends to analyze the general principle of creditor's subrogation right, compare the legal system of France, Japan and Taiwan, and analyze the advantages and disadvantages of China's variation system in combination with the case, and discuss the necessity and specific scope of the expansion of creditor's subrogation right object.

1. the disadvantages of the variation of the object of creditor's derogation in our country.

The purpose of the establishment of creditor subrogation right in China is to solve the problems of "triangular debt" and difficult implementation. [] In order to be able to achieve the rapid recovery of arrears and reduce the emergence of bad and dead debts, legislators have resorted to breaking away from the traditional creditor subrogation system. It should be recognized that the existing provisions of the object of creditor subrogation are indeed beneficial: First, before the promulgation of the Contract Law, China did not have a creditor subrogation system, and there was no experience in applying the creditor subrogation system in judicial practice,. As a new system, it should be treated with caution, so it is reasonable to limit its object. On the other hand, due claims with monetary payment content are easier to determine. [] The so-called liquidation of debts is relatively easy, which means that under the provisions of the sub-debtor directly to the creditor, the monetary claim is more enforceable, rather than the execution of the monetary claim has many problems, such as A to B to enjoy a 100,000 yuan claim, B to C to enjoy a claim, C to pay B a batch of goods. If A exercises its creditor's subrogation right, C will be required to deliver the goods to A, at which point the valuation and exchange of the goods for currency is very troublesome and prone to new disputes. But on the whole, this variation does more harm than good and fails to achieve the expected purpose of legislators.

(I) contrary to the purpose of the establishment of creditor's derogation.

One of the disadvantages is that the variation system violates the purpose of the establishment of creditor's deposition. When the debtor is in external debt, it is secured by the property of its liability, which is known as the general guarantee. If the debtor allows the value of its liability property to be improperly reduced, the possibility that creditors will not be able to realize their claims will increase, and the purpose of the creditor subrogation system is to prevent the debtor's laissez-faire behavior. In order to realize the purpose of creditor's subrogation right and maximize the protection of creditor's interests, the traditional theory provides for the object of creditor's subrogation right very widely, and almost all the rights beneficial to the preservation of the responsible property belong to the object of creditor's subrogation right. Limiting the object of creditor subrogation to monetary claims makes the scope of the property that can be preserved smaller and weakens the function of creditor subrogation to protect claims.

The scope of the object of creditor's subrogation right is too narrow, which leads to the strict conditions of its constituent elements, which greatly reduces the scope of its application. This disadvantage can be expressed in the number of creditor subrogation litigation, since the promulgation of the Contract Law, creditor subrogation litigation is not much. A judge in Zhejiang Province counted the number of creditor subrogation cases in the province within two years, with only more than 500 cases, of which few were found to meet the constituent elements of creditor subrogation, while the total number of civil cases in the province during the same period was 100,000. [] The number of times the system has been applied is so small that it can be seen that the creditor subrogation system has not been fully implemented and its purpose of safeguarding claims has not been well achieved.

(II) leads to the value deviation in the application of law.

The legislator, no matter how he formulates any system, has its purpose, but in any case he cannot violate the basic values of civil law. The expected purpose of the establishment of China's creditor subrogation system is to stabilize the socialist market economic order through the recovery of triangular debt. However, the variation of the creditor's subrogation right in our country has not achieved the expected purpose, and has also affected the fairness and justice. This disadvantage is not only caused by the narrow scope of the object of creditor's deposition right, but also has a great relationship with the abandonment of the deposit rule in the Contract Law.

1. It is contrary to the fair spirit of civil law.

In this example, A will sell a car to B, the car completed delivery but B did not pay, B will sell the car to C, the same completed delivery of the car but did not pay, at this time if the other conditions of creditor subrogation, A can exercise the creditor subrogation right, require C to B to perform the debt to protect A's claim. However, if the case is slightly changed, B will be the car and C of a batch of goods mutual easy, B delivery of the car but C did not deliver the goods, at this time A can not through the exercise of creditor subrogation to protect their own interests, because B enjoys the claim of the delivery of goods, does not meet the constituent elements of creditor subrogation. It can be seen that under the existing system, similar situations have led to completely different results, which is contrary to the spirit of civil law fairness.

In addition, the priority rule of creditor subrogation in China is not in line with the existing civil law system. As mentioned above, our country takes the priority payment rule and abandons the deposit rule, and the sub-debtor pays the creditor directly. According to the general theory of the civil law system, the creditor's right is relative, its effect exists only between the specific parties, and there is no right of claim other than the specific parties. In order to prevent a particular party from abusing the rule and causing the rights of its creditors to be impaired, a third party outside the creditor's rights relationship may also intervene under certain conditions. The priority payment rule of creditor subrogation system in China completely breaks through the relativity of debt, and creditors can not only exercise the right of claim to the sub-debtor, but also have the right of receipt, which is a great shake of the basic system of civil law.

2. Lead to different standards in judicial practice

The author collects the judgment documents of a number of creditor subrogation cases to distinguish the criteria for determining the object of creditor subrogation in different cases. In the case of the plaintiff Wang Jun v. the defendant Wu Jungeng and the third person Xiao Dehua's creditor subrogation dispute,[] Wang Jun's due claims to Xiao Dehua could not be paid off, while Xiao Dehua's mortgage on the real estate owned by the defendant Wu Jungeng was not exercised. If, according to the current law, the mortgage is a property right and does not belong to the object scope of the creditor's deposition right. However, the court held that the object of the creditor's subrogation right should not be limited to the monetary claim. Its judgment wrote: "The most important interest factor in the intention of the subrogation right is to protect the creditor's claim. Based on the principles of equality and justice, it should be determined that the object of the subrogation right certainly includes the security right, and the creditor has the right to subrogate the debtor's mortgage right to the sub-debtor." Some courts still adhere to the provisions of the existing system. For example, in the above-mentioned case of Wang Ruiguang v. Beihai Municipal Health Bureau, the Supreme Law proposed in the ruling that the debtor's due claims against the sub-debtor should also be determined to have the content of money payment and other property payment. If the creditor claims subrogation to the sub-debtor, the people's court will not support it. It can also be seen that there are courts that insist on the existing provisions of creditor subrogation, holding that its object can only be a due claim with the content of monetary payment.

The existing variation system is neither in line with the traditional logic of creditor's derogation, nor can it effectively achieve the purpose of protecting creditor's rights, and has caused confusion in the use of standards in judicial practice, which shows that the variation system is only a stopgap measure to solve the chaotic creditor-debt relationship between enterprises in the 1990 s. If the legislation is not forward-looking and lags behind the reform, the reform must be based on the law and become empty talk,[] so creditor subrogation should be restored to its original form in the new contract series, and its object should be expanded.

2. China's creditor subrogation right object specific expansion scope analysis.

The need to expand the scope of the object of creditor subrogation in China has almost become a consensus in the academic circles, but there have been divergent opinions on how to expand the scope. The author thinks that the object of creditor's subrogation right should include the right of property right and the right of claim on property, the right of creditor's claim and the right of formation, the right of special retention deduction in the inheritance law, the right of action and the right of litigation. Purely personality rights and identity rights are rights exclusive to the debtor and are not property rights, so they may not be subrogated, as mentioned above, and will not be discussed in this section.

Some rights in (I) property rights and property claims can be exercised on behalf of them.

The content of the property right lies in the control of the use of the body of the object and the acquisition of the value of the object,[] belongs to the property right. The subrogation exercise of property rights to protect claims in line with the purpose of creditor subrogation, so it should be subrogation. However, not all types of property rights are suitable for subrogation by their nature.

1. Ownership and in rem claims

The general view of scholars is that ownership in property rights should not be the object of creditor subrogation. The reasons are as follows: first, when the creditor's right expires, the creditor can satisfy the creditor's right through enforcement. second, there was no provision for the elimination of limitation in our country at that time. the ownership was not exercised in time and did not lose the ownership. the ownership of the property is still the debtor's responsible property. therefore, there is no need for subrogation. []

At this time, there will be a doubt, whether the creditor can not require the enforcement of the debtor's property, but subrogation to lease it to fill the debtor's liability property? The author believes that it is not feasible, first of all, the right to acquire value will be the right to dispose of the property (such as selling, leasing, etc.), so as to obtain the value of the interest is power rather than rights. The object of the creditor's subrogation right shall be the debtor's existing rights, and if it is only a power, it shall not be exercised. [] Secondly, the purpose of creditor subrogation is to protect the creditor's liability property, and if the liability property is compared to water, then the preservation of the debt is the levee that encloses the water, and the claim is the pump. [] It can be seen that the purpose of the creditor's subrogation right is to ensure that the existing liability property is not lost and not to increase the liability property under this right, so that even if the debtor neglects to exercise its ownership and causes its property to be idle, it will not result in the reduction of its liability property, and the creditor may not subrogate to obtain the proceeds. Finally, in the creditor's subrogation litigation, the sub-debtor is the defendant and the debtor is the third party. In this case, there is no clear and specific sub-debtor, so the action cannot be established.

The author thinks that the creditor's derogation right is useful in the exercise of the right to return the original. First of all, the neglect of exercising the right to return the original property will increase the instability of the responsible property. Compared with ownership, claims have the risk of not being realized, and the process of their implementation is more complex. [] Creditor subrogation, on the other hand, is the conversion of claims in the liable property into ownership or the exercise of claims to achieve effective control over particular property, facilitating and even enhancing the ability of the liable property to be liquidated. [] In this sense, if the debtor neglects to exercise its claim for the return of the original, the creditor should be entitled to subrogation. Otherwise, the creditor can only bring an action against the debtor and apply for enforcement after winning the case, and during this long period, the creditor can only pray that the thing is safe and sound in the hands of the person who is not entitled to possession.

Secondly, in terms of the historical evolution of creditor subrogation, the system of creditor subrogation still has some significance under the circumstances that the means of enforcement can be exercised. The creditor's derogation system originated in France, and the legislative consideration of the creation of creditor's derogation in French civil law lies in the lack of the enforcement method of the claim of real estate in France, and there are no special provisions for the creditor's claim of the third debtor. [] However, from the experience of comparative law, Roman law and German civil law do not recognize this system. The civil procedure law of Germany, Switzerland and other countries has a relatively complete system of enforcement of the debtor's claim, the content of which is that the creditor can request the court to freeze the debtor's claim, at which time the debtor will not have the right to dispose of the claim, and then allow the creditor to collect or order a third party to transfer payment and other sanctions to achieve the settlement of the claim. If the third party is unwilling to comply with the collection order, the creditor must file a collection action against the third party and obtain an enforcement name against the third party before applying to the court to enforce the third party's liability property. [] However, in the case of more complete enforcement, creditor subrogation still has some significance. In Japan and Taiwan, its civil procedure law or enforcement law has regulated the enforcement of claims or other property rights against debtors or third parties. [] In this case, Japan and Taiwan still adhere to the creditor subrogation system, the implementation of subrogation and enforcement of the dual legislative system. The reason for this is that formal civil enforcement not only requires legal instruments, but the procedure itself is quite complex, so in an emergency, it is more convenient to preserve the debtor's property through the exercise of subrogation, which is simpler in terms of constituent elements and procedures, and then to enforce it. [] Therefore, where ownership is enforceable, property may also be preserved through the application of a simple creditor subrogation regime. Therefore, the right of claim in rem should belong to the object of creditor's deposition right.

2. Security interests

A security right, a subordinate right for the security of a claim, for the purpose of obtaining the price of the sale of its subject matter and paying off the debt, is a right to obtain the exchange value of its security. [] The security right itself is not the property of the owner of the security right, since the security right has value only if it is attached to the claim, and its value is reflected in the preservation and realization of the secured claim, and once it is separated from the claim, it does not show the value of the property, even if it survives reluctantly and independently. [] However, depending on the nature and purpose of the security interest, it should be included in the category of the object of the creditor's subrogation.

First of all, although the security right is not the liability property of the security right holder, its exercise can protect the liability property of the security right holder. In the case of a mortgage, for example, once the mortgage is established, the mortgage is no longer the mortgagor's liability property, but together with the debtor's liability property becomes the general security of the claim. If the creditor has a mortgage against the debtor or a third party and does not exercise it, it will lead to a reduction in the property of the general security to which the claim is directed, further leading to an increase in the risk that the claim will not be paid, and therefore may be exercised on behalf of it.

Secondly, the most important interest factor in the meaning of the subrogation right is to protect the creditor's claim, the security right is to ensure the realization of the claim and set up other property rights, based on the principle of equality and justice, should be determined that the object of the subrogation right of course contains the security right, the creditor has the right to exercise the debtor's mortgage right to the sub-debtor. There are two ways of subrogation of the security right, one is that when the creditor exercises the debtor's claim on behalf of the creditor, if there is a security right on the claim, the creditor may choose to exercise the security right on behalf of the creditor, and the other is that the creditor exercises the security right on behalf of the creditor alone.

(II) claims and related formation rights may be exercised in subrogation.

As a property right, claims can be subrogation by creditors for the law, Japan and other countries recognized. In addition, some formation rights related to claims may also be exercised on behalf of others, including formation rights for the purpose of property interests, such as the right of choice, the right of discharge, and the right of formation of a property nature, such as the right of avoidance caused by a defect in the expression of meaning. However, not all of the above-mentioned rights are suitable for subrogation, and claims that belong exclusively to the debtor may not be subrogation, such as claims for maintenance based on a status relationship. Several disputed claims and related rights are discussed below.

1. The rights of the employee in the employment contract.

Employment is the purpose of the payment of services itself, and the so-called payment of services, to the payment of various services as the content of its contract, which is different from the contract for the purpose of achieving a certain purpose, but only the payment of services as its means of the contract, this is the characteristics of employment. [] The employer has the right to ask the employee to pay the service. Some scholars believe that the right cannot be used as the object of the creditor's subrogation right, because the right belongs to the right that cannot be transferred in nature. [] The employment relationship is a trust relationship in principle. Who the employer is usually of great importance to the employee. [] Who the employer is has great influence on the employee's choice, employers are often not allowed to grant their claims for services without authorization, so they are rights that cannot be granted.

However, the right that cannot be transferred is not of course not subrogation. The argument relating to subrogation should lie in the exercise of the right in dispute, which by its nature should respect the meaning of the debtor. [] In an employment contract, the employer neglects to exercise his right to request the payment of services, the employer's creditor's subrogation to exercise this right does not undermine the trust relationship in the employment relationship, the employee still provides services to the employer, the rights and obligations of both parties have not changed, so the right can be subrogation. Similar to this is a contract of trust, such as a contract of entrustment, which can be exercised on behalf of the above.

2. The right to claim damages for the infringement of the right of personality.

As far as natural persons are concerned, personality rights, like rights and abilities, are inherent rights, beginning with birth and ending with death. [] The general rule holds that the right to claim compensation for damage caused by infringement of life, body, health, freedom or reputation cannot be exercised on behalf of another. [] However, the author believes that it should be treated differently depending on the type of claim for damages arising from the infringement.

The reason for the scholars who claim that the right to claim damages for the infringement of the right of personality is that although the right is a property right, it is a right based on the right of personality. [] However, the exclusive nature of personality right does not naturally lead to the exclusive nature of the right to claim damages arising from the infringement of personality right. The exclusive nature of personality right lies in that the law does not allow natural persons who do not have personality right to exist, while the purpose of the right to claim damages is to make up for the loss of property interests of the infringed, showing the nature of creditor's rights, so it does not have the exclusive nature itself. For example, the "the People's Republic of China Tort Liability Law" stipulates: "If the victim is killed, the funeral expenses and death compensation shall also be compensated." Death compensation is compensation for property damage arising from the death of the creditor, not for "life" itself. [] If the victim dies as a result of the tort, he is no longer a civil subject and cannot have the right to claim damages. [] The reason why the relatives of the victims have the right to claim compensation for death in their own name is that they have suffered property losses. In other words, joining the victim who did not die due to the infringement will continue to create wealth and accumulate property in the subsequent life, which can be inherited by his heirs in the future. The perpetrator's infringement resulted in the death of the victim, and the expected property disappeared completely, so that the victim's heirs lost part of the property that could have been inherited. In this case, the reason for the right holder to file a claim for compensation is the loss of his future inheritable interests, which is far from the personality interests. Therefore, the right of claim for property damage arising from the infringement of the right of personality should belong to the object of the creditor's subrogation right, when the right holder is idle in exercising the right, its creditor can exercise the right of claim radially to the perpetrator, and the perpetrator needs to compensate the right holder. These money can constitute the debtor's liability property, so the right to claim such damages should be subrogated.

Compensation for moral damages arising from the infringement of personality rights has both a compensatory function and a soothing function, so it is different from property compensation. The author thinks that the right to claim compensation for moral damage can not be subrogation, first of all, one of the applicable elements of moral damage compensation is that the infringed has suffered serious mental damage. However, whether the infringed has been infringed and whether the degree of infringement has reached a serious level is very subjective. Secondly, although the right to claim compensation for mental damage is a property right, its purpose is to convert the mental pain suffered by the victim into money for the offender to pay. [] After the victim gets the money, his anger is reduced and his hatred for the infringer is eased, thus achieving the function of comforting the victim. Therefore, whether to exercise the right to claim compensation for moral damage should be decided by the victim himself. However, if the victim dies before the right to claim compensation for moral damage is confirmed, the right can be inherited (Article 18 of the Interpretation on Several Issues Concerning the Application of Law in the Trial of Personal Injury Compensation Cases), and after the right is inherited, the nature of comforting the victim has been weakened, and the right should become the object of creditor's subrogation. When the heir becomes the debtor in the creditor's subrogation relationship, the creditor may exercise the claim for damages on behalf of the creditor.

It is worth noting that there are many ways to bear tort liability in China, including cessation of infringement, elimination of nuisance, elimination of danger, return of property, restitution, compensation for losses, apology, elimination of influence and restoration of reputation (Article 15 of the Tort liability Law of the People's Republic of China). Among them, apology, elimination of influence and restoration of reputation are aimed at filling the victim's mental pain and restoring his damaged social status, and do not have the content of property interests. Therefore, the right of the victim to ask the perpetrator to bear such tort liability shall not be exercised on behalf of the victim.

Therefore, the right to claim damages arising from the infringement of personality rights should be distinguished, mainly to fill the property damage claim should be subrogation, mainly to comfort the mental pain of the mental damage claim can not be subrogation, but the spiritual damage claim can be subrogation after the right to claim.

As can be seen from the foregoing, not all claims and related formation rights are suitable for subrogation, and although some specific rights that are not suitable for subrogation are listed and discussed above, they are not exhaustive. When faced with a specific right in dispute, it is critical to determine whether it is exclusive.

Countermeasures in 3. Judicial Practice and Suggestions for Future Legislation

Countermeasures in (I) Judicial Practice

The variation of the creditor's subrogation system in our country adds difficulties to the determination of whether the subrogation right is established in judicial practice. The tricky thing in practice is that the scope of application of creditor subrogation under the existing system is too narrow, resulting in the purpose of the establishment of the system can not be reflected. Judging from the few existing judgment documents of creditor subrogation cases, the Supreme People's Court still insists that the object of creditor subrogation should be limited to claims with monetary payment content, such as the case of the creditor subrogation dispute between the applicant Wang Ruiguang and the respondent Beihai Municipal Health Bureau and the third party of the first instance, Beihai Seascape Real Estate Development Company. And some lower people's courts have expanded the scope of the object of creditor's derogation in trial practice, such as the plaintiff Wang Jun v. the defendant Wu Jungeng, the third person Xiao Dehua creditor's derogation dispute.

Although the variation provisions of the creditor's subrogation system in our country are insufficient, before the law is readjusted, judicial practice still needs to follow the existing provisions, so how to grasp the spirit of the existing legislative provisions and relevant judicial interpretations is very important. [] Existing legislative provisions are aimed at the rapid recovery of claims. In order to stimulate creditors to exercise creditor subrogation and quickly eliminate the problem of inter-enterprise triangular debt, the legislation abandoned the deposit rule and adopted the rule of priority payment, which led to the restriction of the object of creditor subrogation. Therefore, in judicial practice, the identification of the object of creditor's deposition right should pay attention to the following aspects. First, in principle, the provisions of the existing law should be adhered to, the object of creditor subrogation is limited to claims with the content of monetary payment. The reason for this is that claims for the payment of money often do not have close personal dependence between the obligors of rights, while claims for the act of payment are mostly based on trust between the creditor and the debtor, and such claims are often inalienable. On the basis of the system of priority payment, allowing creditors to perform subrogation to pay claims, and then directly accept the settlement of the sub-debtor, will destroy the trust relationship in the contract, thus causing the sub-debtor to act against its will. Second, the scope of the object of creditor subrogation may be appropriately extended to security interests. Compared with other rights, the suitability of security interests for subrogation lies in the way they are realized. For example, the realization of the mortgage right lies in the priority payment of the value of the mortgaged property auction and sale when the debtor does not pay off the claim. At this time, it reflects the content of money payment, and the subrogation of the security interest is conducive to the elimination of the creditor and the debtor and the sub-debtor between the creditor and the debtor, in line with the spirit of legislation.

(II)'s recommendations for future legislation

From the previous discussion, it can be seen that the variation of the creditor's subrogation right in our country is an expedient measure to solve the problem of the moment. Once the time is ripe, it should be revised as soon as possible to restore its original appearance as a debt preservation system. For the rules that were more mature before and received better feedback from the empirical evidence, we should consider the draft subdivisions of the Civil Code for the first time at the fifth meeting of the Standing Committee of the 13th National People's Congress on August 27, 2018. In Article 324 of the Contract, the creditor's subrogation system is revised to "if the debtor neglects to exercise its rights and affects the realization of the creditor's claim, the creditor may request the people's court or arbitration institution to subrogate the debtor's rights in its own name, except that the rights belong exclusively to the debtor itself". It can be seen that the object of creditor's subrogation is the same as the traditional theory. However, article 326 also stipulates that if the people's court or arbitration institution determines that the subrogation right is established, the debtor's counterpart shall perform the obligation to the creditor, and after the creditor accepts the performance, the corresponding rights and obligations between the creditor and the debtor, the debtor and its counterpart shall terminate. It can be seen that the draft still adheres to the rule of priority payment, under which the scope of the object of creditor subrogation is still very narrow. With regard to the draft provisions, the author, on the basis of agreeing with article 324 of the draft, makes the following suggestions.

1. Revised draft article 326 to establish rules for warehousing

As mentioned earlier, one of the important reasons why the scope of the object of creditor subrogation in China's Contract Law is so narrow is that China applies the principle of priority compensation and abandons the deposit rule. This fundamental change is also the main reason for the difference between the subrogation system of contract law in China and the traditional theory. If the deposit rule is not re-established, the scope of the object of the traditional creditor's subrogation right restored by article 324 of the draft will become a mirror image.

At the time of the formulation of the Contract Law, the problem of inter-enterprise triangular debt was extremely serious, so in order to solve the problem, the creditor's rights were regarded as the object of creditor's subrogation. However, with the deepening of reform and opening up, the rapid development of the market economy, people's concept of the rule of law continues to strengthen, in order to facilitate daily life, the debtor and creditors of the debt relationship between the two has not only been reflected in the contract norms. [] It has become common for financial institutions to avoid the debts of financial institutions by using too strict a requirement for the establishment of subrogation. []

Both theory and practice have proved that it is inappropriate to continue to use the deposit rule, and to truly expand the scope of the object of creditor subrogation, the return of the deposit rule is also required. As far as the current draft is concerned, Article 324 stipulates that the object of the creditor's subrogation right is "the debtor's right", but Article 326 stipulates that if the people's court or arbitration institution determines that the subrogation right is established, the debtor's counterpart shall perform the obligation to the creditor. This provision is tantamount to covering one's ears and stealing the bell. In fact, it does not fundamentally solve the problem. Therefore, the author proposes to amend the clause, establish the rules of storage, and make it clear that the creditor's counterpart should perform its obligations to the debtor.

2. Add a law to provide for the rights of the debtor.

The draft contract does not incorporate 《<合同法>Article 12 of Judicial Interpretation I provides for claims that belong exclusively to the debtor itself. In the process of compiling the civil code, we should systematically sort out the judicial experience and doctrine accumulated over the years, and absorb the valuable contents into the civil code, so as to improve the level of rule supply of the civil code as much as possible. [] Although the author is 《<合同法>The provisions on the debtor's own claims in Judicial Interpretation I are not fully endorsed, but it is also considered that the creditor subrogation provisions should be incorporated into the virtuous rules established by the tested judicial interpretations, guidance cases, typical cases and transaction practices,[] and should be reflected in the Civil Code after making a trade-off. The reason is that the expansion of the object of creditor subrogation will inevitably cause a large number of creditor subrogation cases to enter the court, and the determination of whether the object of creditor subrogation belongs to the debtor's rights naturally becomes the focus of the trial. And because of the provisions of the existing law, over the past two decades, judges have only had to judge claims, suddenly faced with the expansion of the scope of relevant rights, which will inevitably lead to confusion in the determination of the nature of rights in the trial, so it is necessary to make a certain summary and enumeration of the rights that belong exclusively to the debtor.

In addition, in the past, China's law has always had the legislative idea of "coarse rather than fine. However, as the basic law of private law, the civil code should provide institutional resources for economic and social life as much as possible. The rules of the civil code are too simple, which will not only continue the abnormal phenomenon of judicial interpretation far more than law, but also seriously damage the authority of the civil code. [] and more detailed regulation of rights that are exclusive to the debtor may reduce or even provide a reference for analogy.

Therefore, the author suggests that the rights that may not be exercised by subrogation should be enumerated in a non-exhaustive manner, including the right of personality, the right of identity, the right to claim for moral damages that have been infringed upon, the right to claim for maintenance based on the identity relationship, etc., which belong exclusively to the debtor itself, and the right to pensions, pensions, etc. that may not be withheld. Without exhaustive enumeration, it is appropriate to consider whether the right in question is a right that belongs exclusively to the debtor, and it is appropriate to judge the matter on a case-by-case basis, with only a list of rights that are absolutely non-subrogation for the judge's reference.

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[17] the People's Republic of China Civil Ruling (2012) Min Shen Zi No. 604.

[18] Civil Judgment of Fuzhou Intermediate People's Court of Fujian Province (2018) Min 01 Min Zhong No. 1334