论破产撤销权次顺位抵押权的模式选择

On the Mode Choice of Subordination Mortgage Right of Bankruptcy Cancellation Right

适用顺位升进主义的法国和日本,适用顺位固定主义的德国和瑞士等国家的立法经验可以为我国采升进还是固定主义提供借鉴性经验。升进主义优势主要在于使抵押物所有人更易融资,但客观上存在不当得利、不利于实现抵押权流通等缺陷。固定主义优越性可归结三点:防止不当得利、有利于抵押物所有人利用先顺位再次融资、实现抵押权证券化,但往往债权人不愿接受后顺位抵押权,导致抵押物所有人融资受阻。基于对公平保护债权人、体现利益平衡原则的破产精神的考量,应采顺位固定主义,并先就被撤销后所形成的部分作为共益债权进行融资,其次进入破产程序之前设定次顺位抵押权可发挥当事人的意思自治,但当进入破产程序,该约定不可对抗其他一般债权人。

The legislative experience of countries such as France and Japan, which apply the principle of as-cending order, Germany and Switzerland, which are applicable to sequential fixedness, can provide reference experience for China to adopt the principle of ascending order or fixing order. The advantages of progressivism mainly lie in making it easier for the mortgagee owner to finance, but objectively there are defects such as improper enrichment and unfavorable realization of the circulation of mortgage. The advantages of fixed doctrine can be summed up in three points: to prevent unjust enrichment, to facilitate the mortgage owner to refinance by using the first-ranking mortgage, and to realize the securitization of mortgage, but often the creditor is unwilling to accept the second-ranking mortgage, resulting in the mortgage owner’s financing being blocked. Based on the consideration of the bankruptcy spirit of fair protection of creditors and reflecting the principle of balance of interests, the principle of subordination fixation should be adopted, and the part formed after the cancellation should be used as the common creditor’s rights for financing, and then the establishment of subordination mortgage right before entering the bankruptcy procedure can give play to the party’s autonomy of will, but when entering the bankruptcy procedure, this agreement cannot be against other general creditors.