论查封扣押财产的抵押权能

The Examination of the Mortgage Right Pertaining to Seized and Detained Property

当查封扣押财产剩余价值不足以清偿申请执行人债权或者该财产为不可分物时,允许对其设立抵押权并将其限制为相对效力的方案能够避免财产价值沉淀,均衡保护各方融资与受偿利益,不影响执行的公共秩序,应成为《民法典》和《强制执行法(草案)》的统一解释结论,现有登记制度亦存在支持空间。抵押权效力的判断应区分债务人融资目的与行为并辅以执行法院审查。若损害申请执行人利益,抵押权仅具相对效力,且申请执行人应当优先于抵押权人进而优先于一般债权人受偿。轮候查封申请人是否优先于抵押权人需根据轮候申请查封时点判断。破产程序中申请执行人顺位不再优于一般债权人,抵押权还需受限于破产撤销权。

In situations where the residual value of the seized property proves insufficient to fully satisfy the creditor's claims of the applicant for execution,or when the property in question is indivisible,the scheme that permits the establishment of mortgage with restricted effectiveness offers a potential solution.This approach can prevent property value underutilization,protect the fi-nancing and payment interests in a balanced manner,and do not affect the public order of execution.Thus it should be a unified interpretation of Civil Code and Compulsory Execution Law(Draft),with existing registration system supporting it.The mortgage effect should distinguish between the debtor's financing purpose and act,coupled with review by the executive court.If the mort-gage proves detrimental to the applicant for enforcement interests,its effectiveness remains relative.Consequently,the applicant for execution should hold precedence over the mortgagee,followed by priority over general creditors.Whether the mortgagee is in-ferior to the applicant waiting for seal up needs to be judged according to his application time for seal up.In case of bankruptcy,the applicant for execution loses its superior standing to the general creditor,and the mortgage right is also regulated with the bankruptcy cancellation right.