破产程序中担保物权受限制之合理性探讨

On the Reason of Restriction of Secure Interest in Bankruptcy

新破产法草案曾经试图建立一种企业职工劳动债权优先于担保债权受偿的清偿顺序,但因其可能会从根本上冲击担保物权制度、破坏市场经济秩序而遭到置疑。担保物权制度确立逾千年,物权优先性原则在民法中被严格遵守。但是,在破产这一概括性清偿程序中,这一原则不应被简单、机械地适用。在有限责任制度下,担保物权对无担保债权的稀释作用不容忽视。在破产程序中对担保物权加以一定程度的限制,不仅有利于实现社会公平、提高分配效率,也是债权社会化后的必然结果。

The new bankruptcy law tired to a repayment order that credit of workers is prior to that of secured creditors, which was questioned because of its impact on the system of secured interest and market economy. The system of secured interest was established thousands of years ago and the priority of se- cured interest is strictly observed. Nevertheless, in the bankruptcy proceeding, the principle should not be applied mechanically. So restricting the priority of secured interest to some degree is conductive to the realization of social justice and distributional efficiency.