SUBROGATION OF CREDITOR’S RIGHTS TO THE THIRD PARTY UNDER THE LAW OF UKRAINE AND THE KINGDOM OF SPAIN (COMPARATIVE AND LEGAL ASPECTS)
Journal Title: Юридичний бюлетень - Year 2018, Vol 6, Issue
Abstract
The article is devoted to the study of the legal nature of the mechanism of subrogation of creditor rights to a third party. The state of research of the concept “subrogation” is determined and the distinction between subrogation of creditor rights to a third party from some other related legal categories, in particular delegation and intercession, has been made. Also, the article outlines the main differences between the subrogation of the creditor’s rights to the third party from the reassignment of the execution of the debtor’s duty by a third party. It has been determined that the subrogation of the creditor’s rights to a third party is a form of legal succession of the rights. The main conditions for transferring the rights of a creditor to a third party in the order of subrogation according to the legislation of Ukraine and the Kingdom of Spain are described. On the basis of a comparative legal analysis, it has been proved that Ukrainian and Spanish legislators put forward different approaches to the application of subrogation of creditor rights to a third party. It is proved that in the national civil law the subrogation of the creditor’s rights to a third party is a way of protecting its civil rights and interests, which can be applied only in the total presence of certain circumstances, and also not only in the absence of agreement of the debtor, but also in the case of his prohibition. Instead, according to the results of the study of civil law of the Kingdom of Spain, it has been determined that the lawfulness of the performance of a third party’s duty does not depend on the will of the debtor and the reasons which make the third party fulfilll the obligation. It is found that under the civil law of the Kingdom of Spain, the necessary condition for the replacement of a creditor in an obligation with subrogation is the agreement of the debtor to fulfill the obligation by the third party. On the basis of comparative legal analysis, some ways of improving the civil law of Ukraine in terms of fulfilling obligations of a third party with subsequent subrogation of the rights of the creditor are proposed.
Authors and Affiliations
Людмила Петрівна Макаренко
Keywords
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