This case is a follow-up enforcement case formed by the previous trial case. The facts of the case were simple: the tree company signed a contract with the housing company for the project. After the project contract was signed, natural person A signed an internal contracting contract with the tree company, stipulating that the tree company would only charge 5% of the management fee. After that, natural person A recruits, supplies, and arranges decoration work. Suddenly, one day, natural person A disappeared, and the delivery person B filed a lawsuit with the court for the sale and purchase contract, and the court ruled that natural person A was liable for payment. But can delivery person B's payment be claimed from the tree company or the housing company?
Article 535 of the Civil Code: Where the debtor's negligence in exercising its creditor's rights or subordinate rights related to the creditor's rights affects the realization of the creditor's due creditor's rights, the creditor may request the people's court to subrogate the debtor's rights against the counterparty in its own name, except that such rights are exclusive to the debtor itself.
The scope of the exercise of the right of subrogation is limited to the creditor's due claims. The necessary expenses for the creditor to exercise the right of subrogation shall be borne by the debtor.
The counterparty's defense against the debtor may be asserted against the creditor.
Article 536:Where the debtor's creditor's rights or subordinate rights related to the creditor's rights are about to expire before the creditor's creditor's rights expire or the bankruptcy creditor's rights are not declared in a timely manner, which affects the realization of the creditor's creditor's rights, the creditor may subrogate to the debtor's counterpart to request it to perform with the debtor, declare to the bankruptcy administrator, or take other necessary acts.
Article 537:Where the people's court finds that the right of subrogation is established, the debtor's counterpart is to perform its obligations to the creditor, and after the creditor accepts the performance, the corresponding rights and obligations between the creditor and the debtor and the debtor and the counterpart are terminated. Where preservation or enforcement measures are taken against the debtor's creditor's rights against the counterparty or subordinate rights related to the creditor's rights, or the debtor goes bankrupt, it shall be handled in accordance with the provisions of the relevant laws.
Xu Baotong's lawyer team explained that, first, the debtor was negligent in exercising. It means that the debtor should have exercised, could exercise but did not exercise rights. If the right is not exercised, it will face the risk of loss, which is why the creditor should exercise the right of substitution. When there is a negative omission on the part of the debtor, it is not exercised, regardless of the cause. In this case, the housing company had already paid part of the money to the account of the tree company, and according to the contract between the tree company and the natural person company A, it should have paid the natural person company A after collecting the management fee. Therefore, these claims are due claims and should be exercised against the creditor's due claims. Second, the debtor's right of expectation cannot be exercised by the creditor on its behalf. Because the expectation right may not be obtained, it must be a mature creditor's right. In this case, because the construction contract dispute between the tree company and the housing company was still in the second instance remand for retrial, and there was no effective judgment, the creditor Mr. B could not directly claim the creditor's subrogation right against the housing company. Because of the existence of such a term interest, if the creditor directly exercises it against the secondary debtor before the expiration of the debt performance period, it will sacrifice the term interest of the secondary debtor and be unfair to the secondary debtor. Third, does it affect the realization of the creditor's due creditor's claim? For example, due to the impact of the new crown epidemic, the operation of the tree company and the housing company is poor, and the workers at the project site have not completed the construction due to illness and other reasons, resulting in the impact of commercial housing and the housing company facing economic difficulties. Although the creditor's claim has been affected, the creditor should bear such loss. However, the debtor's statute of limitations is about to expire, and when the debtor's counterparty invokes the right to defend against the statute of limitations, it will lead to a reduction in the debtor's property. In this case, it constitutes the establishment of subrogation.