债权平等:逻辑、风险与政策

Equality of Creditor’s Rights:Logic,Risk and Policy

行为人对自己的行为后果承担无限责任是私法自治的应有之义。债务人的无限责任决定了其责任财产在时空上的开放性,须以现有或将来取得的一切财产清偿债务,是债权平等的直接理论基础。债权优先权之所以被认为突破了债权平等,源于债务人的无限责任被人为地切割为有限责任并在此基础上推论的结果。除破产清算程序中的债权顺位受偿突破了债权平等外,实证法上的债权优先权的规定,是建立在债权平等基础上的,或为行使债权权利,或为保值增值责任财产,或为防范债权风险所作的制度安排。风险性是债权的固有属性。作为债务人之自然人死亡或破产是将其承担的无限责任转化为有限责任,意味着债权人的债权风险实现或部分实现,债权人就剩余财产(遗产)按债权比例受偿,实现了债权平等。未获受偿或圆满受偿的债权人承受该损失是债权风险实现所致,与债权平等无关。

It is the proper meaning for the autonomy of private law that the perpetrators shall bear unlimited responsibility for their own behavior.The debtor’s unlimited liability determines the openness of its liability property in time and space,and all existing or future property must be used to pay off the debt,which is the direct theoretical basis for the equality of claims.The reason why the priority of creditor’s rights is considered to break through their equality is that the unlimited liability of the debtors is artificially cut into limited ones and inferred on this basis.The fact that creditor’s rights are repaid in sequence in the bankruptcy liquidation procedure breaks the equality on creditor’s rights.In addition,the provisions of the priority of creditor’s rights in the empirical law are based on their equality or are institutionally arranged for exercising the rights,preserving and increasing property or preventing the risks of creditor’s rights.Risk is the inherent attribute of creditor’s rights.The death or bankruptcy of a natural person as a debtor converts its unlimited liability into limited liability,it means that the debtor realizes the risk fully or partially and is compensated for the remaining property in accordance with the proportion of the creditor’s rights,realizing the equality of the creditor’s rights.If the debtor is not compensated or fully compensated,the loss he/she bears shall result from the risk of creditor’s rights rather than the equality of creditor’s rights.