优先权制度的立法困境与对策

优先权制度未能进入《物权法草案》有多方面原因:对优先权私法性的质疑,优先权与物权公示原则、物权特定原则的冲突,优先权与现有担保物权制度、诉讼法清偿顺序制度的整合等等。造成此种困境的根源在于对一般优先权的认识以及优先权在法定担保物权体系中的定位。建议摒除国外优先权制度中一般优先权之规定;建构以抵押权、质权为代表的意定担保物权与优先权(指特别优先权)为代表的法定担保物权的二元化体系。

The Legislative Hardship of the Priority and its Solution

The priority wasn't adopted in the Real Right Law(draft),because there are many reasons: the doubt of priority's nature of private law,the conflict between priority and the principle of the publication of real right,the conflict between priority and the principle of real right's specific object,the incorporation with the security interest in existence and the order of discharge in the procedural law etc.The hardship results from the understanding of the common priority and the priority' location in the legal security interest system.Suggesting to abandon the common priority and build a dualistic system,which is made of the volitive security interest(mortgage right and pledge right) and the legal security interest(the special priority).