完善我国债权人代位权制度的几点构想

Probing into the Perfection of System of Subrogation by the Creditor

我国的代位权制度在代位权的客体、行使方式以及行使效力等方面与其他国家或地区的相关规定有所不同。从新出台的举措看,这种制度设计难以切实保障债权人的合法利益,也难以实现立法者的初衷,并造成了一些理论与实务上的新困惑。应利用我国新民法典的制订之机,在遵循传统代位权理论的基础上重新构建我国的代位权制度。

System of subrogation by the creditor was introduced into the new Contract Law. Our system differs from those of other countries or districts in object, exercise approaches, validity of exercise and the like. The new measures are scarcely supposed to defend the legal rights and interests of the creditor and hard to satisfy the legislators＇ original intentions, leading to some theoretical and practical problems. When drafting the new Civil Code, we should reconsider and reconstruct the system of subrogation by the creditor on the basis of the traditional theory of subrogation.