论债权人的代位权

On Creditor's Right of Subrogation

债权人的代位权是<合同法>确立的债的保全制度,其构成要件是:必须存在着两个合法的债权;债务人怠于行使其到期债权且给债权人造成损害;债务人的债权已到期;债务人的债权不是专属于债务人自身的债权.债权人应当以自己的名义通过诉讼的方法行使代位权,其范围以债权人的债权为限.代位权的行使,对债权人、债务人和次债务人均产生法律效力.

The creditor's right of subrogation functions as a security enacted in contract law.The essential elements of the subrogation are:the existence of two legally effective contracts;debtor's willful inaction to exercise his legal right to collect his due credit,and damage caused to subrogation as a result;the debor's credit is due;the debtor's credit being not unseparably owned by the debtor.The creditor should exercise his subrogation right in way of proceeding in his own name within the limit of creditor's credit,and such action is effective on creditor,debtor and debtor's debtor.