浅析《民法典》中抵押权清偿顺位规则变化

On the Change of the Order of Mortgage Payment in Civil Code

抵押权是担保物权的重要内容,其与其他担保物权竞合时的清偿顺序在理论界与实践中一直广受关注。《民法典》物权编回应了社会公众与司法实践的需求,删掉了多个抵押权并存时清偿顺序"同日同序"规则,明确了抵押权与质权竞存时的清偿顺序。但囿于我国对动产中间价款抵押权的实践经验的缺乏,《民法典》物权编在引入中间价款抵押权制度时,在规则设计上过于简单,不足以处理实践中纷繁复杂的情形。同时,该制度还会增大其他担保物权的不确定性,影响相关权利人设立其他担保物权的积极性。

Mortgage is an important part of real right for security,and its settlement order,when it coincides with other security interests,has been attracting wide attention in the theoretical circle and practice. In response to the needs of the public and judicial practice,the civil code has made a series of changes to this issue. Most of the changes have positive significance. For example,the rule of"same day and same order"is deleted when multiple mortgage rights coexist,and the settlement order when mortgage and pledge exist in competition is clarified. However,there are still some points worthy of further discussion and improvement. For example,due to the lack of practical experience in China,the system design is too simple. In addition,the system will increase the uncertainty of other security interests.