Subrogation: An Unidentified Legal Object? A Proposal for a Solution to the Renowned Problem of the Legal Construction of Subrogation

IF 0.2 Q4 LAW
Ekin Korkmaz
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引用次数: 0

Abstract

Subrogation, originating from Roman law, is an institution adopted in civil law jurisdictions with minor differences. According to the general definition and understanding, subrogation means the legal (ipso iure) transfer of the creditor’s right to claim to the third-party, who performs someone else’s debt, for granting him/her a privileged legal status in his (recourse) relationship with the debtor. The privileged legal status of the third-party, who benefits from the subrogation, lies in the legal transfer of accessory and priority rights arising out of the right to claim. Because of its exceptional feature, considerable efforts have been made to explain the legal nature of subrogation. However, because of its complexity, there is still no consensus on the issue. There are even views implying that subrogation is an unidentified legal object. The author suggests an explanation to the construction of subrogation in three main steps: (1) Parallel to the prevailing view regarding performance of the third-party, it should be accepted that the will of the third-party is decisive concerning the legal consequences of the performance. (2) Then it should be assumed that the third-party performs the debtor’s debt with the will to acquire (causa acquirendi) in addition to the will to discharge the debtor’s debt (causa solvendi) so that his performance can result in subrogation. (3) Finally, the ‘third-party’ should be redefined in the cases of subrogation. Alongside these steps, the construction of subrogation is based on the theory that a debt may only terminate when its inherent purpose is realized. Therefore, in cases of subrogation, the right to claim continues to exist even after the third-party’s performance with the purpose of serving the right to recourse. This purpose also limits the thirdparty’s powers. This article examines the subrogation’s legal construction by explaining the abovementioned concepts and determining their connections.
代位权:一个无法确定的法律对象?关于解决代位权法律建设中的突出问题的建议
代位权起源于罗马法,是民法管辖区采用的一种制度,有细微的区别。根据一般定义和理解,代位权是指债权人将债权合法转让给履行他人债务的第三方,使其在与债务人的(追索权)关系中享有特权法律地位。从代位权中受益的第三人的特权法律地位在于由请求权产生的附属权利和优先权的合法转让。由于代位权的特殊性,人们对代位权的法律性质进行了大量的解释。然而,由于其复杂性,在这个问题上仍然没有达成共识。甚至有观点暗示代位求偿权是一个未确定的法律对象。笔者建议从三个主要步骤来解释代位权的构建:(1)与关于第三人履行的普遍观点相平行,应当承认第三人的意愿对履行的法律后果具有决定性。(2) 那么,应该假设第三方履行债务人的债务时,除了履行债务人债务的意愿(causa solvendi)外,还具有取得意愿(causha acquivendi),这样他的履行就可以产生代位权。(3) 最后,在代位求偿的情况下,应当重新定义“第三方”。除了这些步骤之外,代位权的构建还基于这样一种理论,即债务只有在其固有目的实现时才能终止。因此,在代位求偿的情况下,即使在第三方以行使追索权为目的履行之后,索赔权仍然存在。这一目的也限制了第三方的权力。本文通过对上述概念的阐释,确定其联系,来考察代位权的法律建构。
本文章由计算机程序翻译,如有差异,请以英文原文为准。
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来源期刊
CiteScore
0.40
自引率
33.30%
发文量
25
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