代位诉讼的法律结构重塑与既判力研究

Reconstruction of the Legal Structure of Subrogation Litigation

合同法第73条第一款规定:"因债务人怠于行使其到期债权,对债务人造成损害的,债权人可以向人民法院请求以自己的名义代位行使债务人的债权,但该债权专属于债务人自身的除外。"这一法律条文确立了代位诉讼制度。作为一种新型的诉讼制度,代位诉讼在对债权人的合法权益进行充分周全保障的同时,也面临许多含混不清而又无法回避的问题,这些问题的厘清与破解对于完善合同法理论和促进代位诉讼司法实践具有现实指导价值。

Article73 of the Contract Law,the first paragraph,stipulates:"if a debtor loses interest in exercising his due claim and causes damage to the debtor,the creditor can ask the people's court to subrogate the debtor's creditor's rights in his own name,but the creditor's right belongs exclusively to the debtor himself."This legal provision establishes a subrogation system in a narrow sense,that is,the system of subrogation.As a new type of lawsuit system,subrogation litigation fully comprehensive insurance at the same time in the creditor's legitimate rights and interests,is also facing many vague and inevitable problems,these problems and clarify the crack for perfecting the theory of contract law and has practical value and promote the practice of subrogation litigation law.Therefore,proceeding from the basic principles of civil lawsuits in continental law system,it is very necessary and meaningful to conduct in-depth and detailed analysis and response to relevant issues of subrogation.