“入库规则”:传统的悖离与超越

随着经济的快速发展 ,债权代位权制度在实行效果上 ,出现了对“入库规则”的背离 ,形成了优先权规则。本文从合同法与破产法、民事诉讼法的协调出发 ,认为 ,“入库规则”应与破产同化 ,而优先权规则应遵循强制执行的理念 ,追求效率下的公平。

"Rule of Warehousing": The Betrayal and Transcendence of the Tradition

With the rapid economic development, subrogation betrays the "rule of warehousing" and forms the "rule of prior rights" in its exercising effect. From the inner concord of the Contract Law?Bankruptcy Law and Civil Procedure Law, the article argues that the "rule of warehousing" should conform to the Bankruptcy Law, and the "rule of prior rights" be operated under the idea of compulsory execution, in pursuit of fairness of efficiency.