民法典编纂视阈下遗产债务清偿顺序制度的理论评析与路径重塑

Theoretical Analysis and Path Reconstruction of the Order System of Paying off Legacy Debts from the Perspective of Civil Code Compilation

我国立法对遗产债务清偿顺序制度尚无全面和系统的规定,学理上对此也是争论不休。当遗产不足以清偿全部债务时,如果没有明晰而合理的遗产债务清偿顺序,不仅法律适用会遭遇障碍,多方当事人的利益亦无法平衡。为在打破债的平等性的同时体现公平与效率,我国遗产债务清偿顺序制度的构建应坚持生存权优先原则、有对价的债务优先于无对价的债务受偿原则、保护债权人利益原则理念,比较借鉴德法日瑞及英美等国立法之有益经验,对遗产债务清偿顺序制度作出符合我国国情的制度设计,以实现法对遗产债务清偿中各个当事人利益的衡平保护。

There is no comprehensive and systematic stipulation on the order of paying off the legacy debt in the legislation of our country,which is debated endlessly in academic theory.When the estate is not enough to pay off all debts,if there is no clear and reasonable order of payment,not only the application of the law will encounter obstacles,but also the interests of multiple parties can not be balanced.In order to break the equality of debt and at the same time reflect fairness and efficiency,The construction of the order system of paying off the legacy debt in our country should adhere to the principle of giving priority to the right to existence,the principle of giving priority to the debt with consideration over the principle of debt payment without consideration,and the principle of protecting the interests of creditors.By comparing the beneficial experience of Germany,France,Japan and Switzerland and Britain and the United States,this paper makes a system design of the order system of paying off the legacy debt in accordance with the national conditions of our country,so as to realize the equitable protection of the interests of the parties involved in the payment of the heritage debt by the law.