論民事實體法秩序下偏頗行爲的撤銷

Voidable Preferences Under Civil Substantial Law

債債務人在資不抵債情况下實施對個別債權人的優待清償或提供財産擔保的偏頗行爲時，其他未獲清償債權人能否對此種行爲行使債權人撤銷權，取决于在民事實體法秩序下，債權回收應在多大程度上重視債權人平等原則，而這一問題又與民事强制執行制度和破産制度的規則安排密切相關。當債務人是自然人或非法人組織從而不適用破産程序時，爲了配合參與分配制度，盡可能實現債權人的公平受償，應當有限度地認可偏頗行爲的撤銷；而當債務人是企業法人時，由于强制執行釆取優先主義原則，偏頗行爲在破産程序外不可被撤銷。 Whether a preferential payment or the provision of security for preexisting debt by an insolvent debtor is voidable under Fraudulent Transfer Rules of Contract Law, depends on to what extend shall the pro rata sha­ring principle be honored under civil substantial law system. This issue is closely related to different distribu­tion schemes implemented by civil enforcement law and bankruptcy law. This article suggests that,in China, where the debtor is a citizen or any other organization that cannot go bankruptcy, the unpaid creditor shall, though in defined circumstances, obtain avoidance of the preference, so that the right of unpaid creditors to pro rata satisfactions recognized by distribution rales of enforcement law can be realized. Where the debtor is an enterprise legal person, however, since the defining characteristic of enforcement law is the “race of dili- gence, outside of bankruptcy, preferences shall be regarded as valid.

Whether a preferential payment or the provision of security for preexisting debt by an insolvent debtor is voidable under Fraudulent Transfer Rules of Contract Law, depends on to what extend shall the pro rata sha­ring principle be honored under civil substantial law system. This issue is closely related to different distribu­tion schemes implemented by civil enforcement law and bankruptcy law. This article suggests that,in China, where the debtor is a citizen or any other organization that cannot go bankruptcy, the unpaid creditor shall, though in defined circumstances, obtain avoidance of the preference, so that the right of unpaid creditors to pro rata satisfactions recognized by distribution rales of enforcement law can be realized. Where the debtor is an enterprise legal person, however, since the defining characteristic of enforcement law is the “race of dili- gence, outside of bankruptcy, preferences shall be regarded as valid.