论债权人代位权与代位执行权的立法冲突与解决

The Conflict of Legislation between Creditor's Subrogation and Subrogation Performance and its Resolution

我国《合同法》规定了代位权制度。《合同法解释》进一步明确了代位权诉讼方面的问题,初步构建了中国特色的代位权制度。但进入诉讼程序的代位权与民事诉讼法中代位执行权的并存在适用中出现立法冲突问题。故从理论与实践相结合的角度对冲突问题进行分析,并力图找到合理的解决方案,以期有利于代位权功能的有效发挥。

The system of subrogation is clearly prescribed in Contract Law. The issues concerning litigation in subrogation are further clarified in the Judicial Interpretation of Contract Law. Thus the preliminary system of subrogation with Chinese characteristics has been constructed. But in legal practice there is legislation conflict between subrogation in litigation and that in law of civil procedure. Therefore, we shall analyze the conflict from both theoretical and practical perspective and try to find the reasonable resolution so as to bring subrogation into full play.