The Doctrine of Subrogation and the Specifics of its Interaction with Regression in Russian and Foreign Law

Abstract

The author examines the doctrine of subrogation in historical and comparative legal aspects. The paper analyzes the interaction of the rules on subrogation and regression and examines the cases of applying the rules on subrogation to regression claims. The interaction between regression and subrogation is not limited to the default use of one or another model, depending on the normative regulation of the legal institution. This concerns the application of the nemo subrogat contra se principle to impose the prohibition to act to the detriment of the creditor under the main obligation in case of its partial fulfillment, the possibility of transferring recourse obligations to other persons through the subrogation mechanism. In some cases, the fulfillment of a recourse obligation may result in the subrogation of the regressant’s rights to the regredient. The author analyzes the choice of the legislator in terms of the model of the reverse claim in surety and insurance. It is indicated that in a situation where the rule of law does not allow the executor to exercise the rights of the creditor through subrogation, he is given the opportunity to reimburse his expenses through recourse. Regression in this regard does not mean an improvement in the position of such a person, but allows an individual to protect his interest where, for formal reasons, he does not have other legal means, which fully corresponds to the regime of a subsidiary remedy. The paper elucidates the arguments for and against the ability of the executor to independently choose the model of the reverse claim. It is concluded that de lege ferenda there are grounds for the executor in a number of cases (primarily with a joint obligation) to independently choose a model of a reverse claim, if this is not carried out to the detriment of the interests of the debtor and third parties.