Viewpoint... The analysis of whether creditors can exercise the right of release.
Published:
2023-12-27
Creditor's subrogation right and contract termination right have complex and diverse attributes, when the two meet, whether the creditor can subrogate to exercise the right of contract termination, different views, need to be discussed in classification.
Foreword
Creditor's subrogation right and contract termination right have complex and diverse attributes, when the two meet, whether the creditor can subrogate to exercise the right of contract termination, different views, need to be discussed in classification. Because there are many types of contracts, this paper only analyzes the following three common types: first, in the legal right of discharge, when the debtor's contract purpose has been finally unable to be realized; Second, in the legal right of discharge, when the debtor's contract purpose is not yet finally realized, can creditors be allowed to exercise the right of discharge on behalf of creditors? Third, whether the agreed right of discharge can allow creditors to exercise the right of discharge on behalf of creditors.
The status quo of the provisions of the 1. creditor's subrogation exercise of the right of discharge.
Article 73, paragraph 1, of the original Contract Law defined the object of subrogation as "maturing claims", and Article 13, paragraph 1, of the Judicial Interpretation of Contract Law I limited it to "maturing claims with monetary payment content", further narrowing the scope of subrogation, resulting in restrictions on the role of subrogation. After the "the People's Republic of China Civil Code" legislative content research, the right of subrogation in the scholars and the parties concerned about the intention to give the expansion.
The first and second drafts of the Civil Code Contract (Draft) define the object of subrogation as "the debtor's right to the counterpart", which not only expands "the due creditor's rights with monetary payment content" to "right", but also changes the object from "sub-debtor" to "counterpart", and the creditor can exercise all the rights of the debtor to the counterpart on behalf of the debtor, including the right of claim and the right of formation, the scope of the expansion is significant.
However, in the final Civil Code, the object of subrogation was eventually reduced to "a claim or a subordinate right relating to that claim". Strictly from the normative context, the object category of subrogation has been expanded to a certain extent, and "non-monetary claims" have been formally included in the category of the object of subrogation, but the right of discharge does not belong to the object of subrogation. However, some scholars believe that the right of rescission can also become the object of the right of subrogation, involving the complex and diverse types of contracts, which need to be judged in combination with the time of contract delay, the actual willingness and ability of both parties to perform, and the impact of rescission on the interests of the parties.
The case of creditor's subrogation in the judicial practice of 2..
The view that (I) creditors cannot subrogate the right to terminate the contract.
With "creditor subrogation", "right of discharge", "contract" as the key words, a total of more than 80 cases that fit this article were retrieved. From the analysis of the results of the case judgment, it can be seen that the mainstream opinion in the current judicial practice holds that the creditor cannot exercise the right of termination on behalf of the creditor. The main reasons are as follows:(1) from the strict meaning of the law, the right of termination does not belong to the object of subrogation, and the creditor cannot exercise the right of subrogation;(3) When the debtor does not agree to terminate the contract, the creditor-debtor relationship between the debtor and the sub-debtor is still uncertain, and the due creditor's rights have not yet been generated, so it does not meet the requirements of subrogation;(4) The termination of the contract is not the purpose of the contract between the parties. It may interfere with the debtor's autonomy and harm the debtor's interests. Therefore, creditors should not be allowed to exercise the right of subrogation.
The view that the (II) creditor may exercise the right of termination of the contract on behalf of the creditor.
From the point of view of the judgment documents, although the mainstream view is negative, but there are some positive judicial practice. For example, Jin Renli and Chen Ruien's creditor subrogation dispute ((2019) Zhejiang 0327 Minchu Civil Judgment No. 3169), Lin Qin and Zeng Huaqin's creditor subrogation dispute ((2021) Min 01 Minzong Civil Judgment No. 148), Bank of China Limited Suzhou Tancheng Sub-branch and Xiang Su Real Estate Development Co., Ltd. Creditor subrogation dispute ((2019) Su 0507 Life Xingchu Co., Ltd. 2268 Civil Judgment), China Ping An Insurance Co., Ltd. Company Beijing Branch, Ding Pingquan Creditor's Subrogation Dispute ((2021) Zhejiang 0604 Zhiyi No. 11 Civil Ruling), these are the pace of exploration combined with practice. The main reasons for the analysis are as follows:(1) the debtor's contract purpose has finally failed to be realized, and the creditor's subrogation to terminate the contract will not affect the debtor's interests;(2) after the creditor's subrogation to exercise the right of termination, the debtor will clearly enjoy the due creditor's rights to the sub-debtor, and there is no problem of unclear relationship between creditor's rights and debts;(3) the debtor's neglect to exercise the right to terminate the contract, damage to the interests of creditors, creditors should be allowed to exercise the right to terminate the contract.
The classification analysis of the 3. creditor's subrogation right.
Legal right of termination when the purpose of the (I) contract cannot be achieved.
When the final purpose of the contract cannot be achieved, in principle, the creditor should be allowed to exercise the right of discharge on behalf of the creditor. As mentioned above, the view that creditors cannot subrogate to exercise the right of rescission is that the main purpose of the contract is to promote the cooperation of the two parties. When the cause of rescission occurs, rescission of the contract is not the only way to safeguard the interests. The debtor can also choose to claim the actual performance of the claim or replace the claim for damages. The creditor's subrogation to exercise of the contract interferes with the debtor's autonomy. When the final purpose of the contract cannot be achieved, the debtor's right to obtain a claim based on the contract is extinguished, or the actual performance is meaningless. At this point, the termination of the contract is the best way to safeguard the interests of the debtor.
There are concerns that, if the debtor is unable to claim actual performance, it may also choose not to terminate the contract and claim alternative payment of damages, and that the creditor's subrogation exercise of the right of discharge deprives the debtor of this option. However, the termination of the contract does not affect the debtor's claim for damages and the amount of the claim, and allowing the creditor to exercise the right of discharge on behalf of the creditor will not adversely affect the debtor. First, the debtor may also claim compensation for the performance of the benefits after the termination of the contract. The termination of the contract only eliminates the relationship between the original payment rights and obligations of the parties, but at this time the parties are placed in the state of the contract to be performed is legitimate, the termination of the contract does not affect the relationship between the parties to pay the obligation.
The legal right to terminate the (II) contract when the purpose of the contract has not been finalized and cannot be achieved.
When the purpose of the contract has not yet been finalized and cannot be achieved, the debtor still has the right to request actual performance against the sub-debtor, and the sub-debtor can still achieve the debtor's contractual purpose after actual performance. If the creditor is allowed to exercise the right of discharge, it will have some interference with the debtor's autonomy, and sometimes the actual performance is often a more efficient and more favorable choice for the debtor. At this time, the interests of creditors, debtors and sub-debtors need to be coordinated, and it is not appropriate to generalize whether creditors are allowed to exercise their right of discharge on behalf of creditors. If actual performance can be expected in the foreseeable future and there is a clear willingness of both parties to continue to perform the contract, the court should not support the creditor's claim of subrogation. The following factors can be considered: First, the delay time is an important factor that judges should consider. If the period of performance agreed upon in the contract has passed a long time, whether it is ultimately difficult to actually perform, if so, the creditor may be considered to exercise the right of discharge. Secondly, the willingness of the debtor and the sub-debtor to perform and the actual conditions of performance should be considered. If both parties have a clear will to perform and the contract has met the initial conditions of actual performance, it is not appropriate to allow creditors to exercise the right of discharge on behalf. Third, consideration should be given to the partial performance of the contract and the impact of the termination of the contract on the debtor and the sub-debtor. If the termination of the contract would cause a loss to the debtor's interests, the subrogation should not be allowed. Finally, the characteristics of different contract types should also be considered.
(III) agreed rescission right
The right of discharge is the autonomy of the debtor and the sub-debtor, so the conditions agreed by the two parties are the elements of judgment. If the sub-debtor's behavior only meets the requirements of the agreed termination right but does not meet the requirements of the legal termination right, the sub-debtor has not yet constituted a fundamental breach of contract, and the debtor's contract purpose may be realized, at this time, the debtor should judge whether to continue to perform the contract, and it is not appropriate for the creditor to exercise the termination right on behalf of the creditor, so as to avoid excessive interference in the debtor's autonomy. If the sub-debtor's default also satisfies the statutory discharge right element, whether the creditor is allowed to exercise the discharge right on behalf of the creditor at this time should be judged in conjunction with the above discussion. Since the creditor can subrogation to the notice and thus give birth to the legal discharge right, when the sub-debtor has not performed, the creditor can choose the notice to meet the legal discharge right conditions as soon as possible, and then claim the subrogation to exercise the discharge right, can not only be based on the conditions agreed by the two parties to simply judge.
Conclusion
The Civil Code further clarifies the specific scope of the object of creditor subrogation and fills the legislative gap, which is the legal need to help creditors effectively realize their claims. However, the exploration of judicial practice is also the essence of promoting practice to adapt to new changes and new situations, and we look forward to the improvement of subsequent legislation and judicial practice.
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