论破产重整融资中债权的优先性

Research on the Priority of Financing the Reorganization

破产重整融资中的债权优先性规则发韌于19世纪美国大型铁路公司重整,鉴于该规则所具有的公平、效率及利益平衡等价值,各国破产立法纷纷予以确认。从规则设计角度分析,主要包括不同层级贷款优先权与共益债权的优先性两大类,但两者的立法构造与适用范围均不同。检视我国相关立法的缺陷与疏漏,建议:一是明确将“重整程序中为债务人继续营业而应支付的借款”界定为“共益债务”,优先于无担保债权受偿;二是将此优先权向前延伸至重整程序申请后至法院裁定前的阶段;三是构建超级优先权,使其优先于既存担保债权,但须符合实体和程序之前提要件;四是将此优先权向后拓展至重整程序转清算程序中。

The Priority of financing thereorganization originated from the reorganization of large railway companies in the 19th century in the US. The essence of priority rulesconsists of the value of fairness,efficiency and balance of interests,so that various countries confirmed this rule in bankruptcy law one after another. From a rule design perspective,the priority of financing thereor-ganizationmainly possesses two kinds of forms,namely the priority of loan at different levels and the priority of " common-benefit creditor's claims",but the legislative structure and scope of application behveen them are quietly different. After reviewing our country's legislation,the essay puts forward four suggestions to make up for legislative defects. Firstly,it cleaily defines " borrowing" in reorganization as " common-benefit debts",which takes precedence over unsecured claims. Secondly,this priority is ex? tended forward to the stage,which is afterthe parties have applied for reorganization and is before the court adjudicates. Thirdly,it is to construct a super-priority that takes precedence over the existing secured claims,but it must meet the requirements of the entity and procedure.Fourthly,this priority is extended back to the reorganization process to liquidation process.