论我国合同法代位权制度与传统的悖离及其完善

发布时间：2018-07-06 08:50

本文选题：债权人代位权 + 债权人　；参考：《中国政法大学》2006年硕士论文

【摘要】：市场经济要求经济活动的主体在经济交往中规范有序地进行经济活动。市场经济的发展客观上要求法律加强对财产流转关系的保护。然而,在实际经济生活中,有些债务人对自己的债务没有异议,承认自己对债权人负有债务。但当债权人向其追索债务的时候,却往往以资金周转困难,暂无偿还能力为由加以搪塞。而对于自己对第三人享有的到期债权,出于自身的某种私利又不积极地行使权利。以致拖欠债务长期不还,给债权人造成损害,使社会经济秩序的正常运行受到干扰和影响。为了解决上述问题,我国《合同法》规定了债权人代位权制度,为债权人实现债权找到了一条有益的途径,对促进交易流转、维护交易秩序的安全与稳定起到了一定的积极推动作用。然而,不可否认,我国债权人代位权制度在基本理论和立法实践中都存在着明显的缺陷,本文采取比较研究方法,从债权人代位权制度的基本理论和立法实践两个方面入手,对债权人代位权制度进行深入完整的研究。本篇论文共分四部分述有关债权人代位权制度的内容。本文第一部分,主要讲述债权人代位权制度的历史沿革:代位权制度的起源、发展、变化;接着分析了我国代位权制度的立法实践。本文的第二部分,对法国民法典、日本民法典及我国台湾地区民法中的债权人代位权制度进行了详细的分析比较,并且通过这种对我国与其他国家和地区债权人代位权制度在立法实践上的比较,发现了我国具有的中国特色:即构成要件明确限定、客体范围严格限制、行使方式限于诉讼、行使效果归债权人。本文的第三部分,深入分析我国合同法代位权制度与传统民法理论上存在的诸多悖离。并分析传统代位制度与我国合同法代位权制度的利弊,提出我国合同法代位权制度确有修改完善的必要。本文的第四部分,结合我国实际,对我国合同法代位权制度进行检讨,有必要对我国合同法代位权制度作进一步的完善,比如补充规定保存、范围不限金钱债权、行使方式有权选择等,从而恢复该制度的立法本意,充分体现法律所应当具有的公平正义之精神。
[Abstract]:Market economy requires the main body of economic activities to conduct economic activities in an orderly manner in economic exchanges. The development of market economy requires the law to strengthen the protection of property circulation relationship. However, in real economic life, some debtors have no objection to their debts and admit that they have debt to their creditors. But when creditors claim their debts, they tend to stumble on the grounds of liquidity difficulties and temporary inability to repay. But for their own due claims to the third party, out of their own private interests and not actively exercise their rights. As a result, long-term non-payment of debts, damage to creditors, the normal operation of the social and economic order has been interfered and affected. In order to solve the above problems, China's contract Law stipulates the system of creditor's right of subrogation, which provides a useful way for creditors to realize their creditor's rights, and promotes the circulation of transactions. To maintain the security and stability of the transaction order has played a positive role in promoting. However, it is undeniable that there are obvious defects in the basic theory and legislative practice of the creditor's right of subrogation in our country. This paper adopts a comparative study method, starting with the basic theory and legislative practice of the system of creditor's subrogation. The system of creditor's subrogation is studied thoroughly and completely. This thesis is divided into four parts to discuss the content of creditor's right of subrogation. The first part of this paper mainly describes the historical evolution of creditor's right of subrogation: the origin, development and change of the system of subrogation, and then analyzes the legislative practice of the system of subrogation in China. In the second part of this paper, the author makes a detailed analysis and comparison of the creditor's subrogation system in the French Civil Code, the Japanese Civil Code and the Civil Law of Taiwan. And through the comparison between our country and other countries and regions in the legislation practice of creditor's right of subrogation, we find that our country has the Chinese characteristic: the constitution elements are clearly limited, the object scope is strictly limited, the way of exercise is limited to litigation. The effect of exercise belongs to the creditor. In the third part of this paper, the author deeply analyzes the conflicts between the subrogation system of contract law and the traditional civil law theory. It also analyzes the advantages and disadvantages of the traditional subrogation system and the subrogation right system of Chinese contract law, and points out that it is necessary to amend and perfect the subrogation right system in the contract law of our country. The fourth part of this paper, combined with the reality of our country, reviews the system of subrogation in contract law of our country. It is necessary to further improve the system of subrogation in contract law of our country, such as the preservation of supplementary provisions, the scope of which is not limited to monetary claims. In order to restore the legislative intention of the system and fully reflect the spirit of fairness and justice that the law should have.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2006
【分类号】：D923.6

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