| 英文摘要 |
In judicial practice, there is a rigid understanding of the application of Article 390 of the Civil Code, which limits the subrogation of mortgages to insurance, indemnity or compensation, which is contrary to the characteristic of value right of mortgage. The right to claim exists as a medium of exchange value after the destruction or loss of the mortgage Consequently, the subrogation shall be interpreted as the right to claim. The interpretation of Article 42(1) of the Judicial Interpretation should adopt the claim subrogation theory. Claims as subrogation have various manifestations, which may be money claims, claims requesting the alienation of real property, claims requesting the alienation of movable property, and claims requesting the alienation of other tangible and intangible property. With respect to the legal composition of subrogation of a mortgage, in the case of a monetary claim, there are two theoretical views: the continuation of security interest and the pledge of claims. The legal constitution of subrogation by claim pledge is in line with the intent of Article 42(2) of the Judicial Interpretation. The pledge-of-claims approach is in fact a functionalist view that applies the rules of transformation of security rights to the conclusion that if a security right is the most similar to a legal form of right in the security rights system, the norms of the law governing that security right should apply. In the case of other claims, there is no need to interpret the continuation of the security right doctrine or the claim pledge doctrine, but functionalism should be used as a grip to promote the integration of the subrogation rules of the mortgage with the system of security rights through the conversion rules of the security right. |
