统一优先权制度纳入我国物权法之必要性——兼谈立法的理论冲突及协调

对于是否应当系统地引入优先权制度以及如何定位优先权制度,在《物权法》起草过程中引起广泛争议,而最终出台的《物权法》并未接受统一优先权制度。从优先权存在的社会原因、立法基础以及优先权在我国特别法上分散立法的缺陷等角度分析,规定统一优先权制度有着重要的理论和现实意义,十分有必要在相关立法中予以确认并科学定位。而在对统一优先权定位时,应当注意合理协调其与现行立法理论的冲突。

The Necessity of the Unified Priority System Brought into Line with the Real Right Laws of China——With the Discussion on Theory Conflict and Coordination of the Legislation

The scholars disputed very much on the systematic introduction of the priority system as well as how to locate the priority system during the process of drawing up the real right laws.However,the final real right laws didn't accept the unified priority system.Actually,if the analysis is implemented from social reason of the priority existence,the legislation foundation and the priority's flaw in separate legislation of our special law,it is indicated that the unified priority system has theoretical and practical significance,and is necessary to be confirmed and scientifically located in the relevant legislation.While the unified priority is located,much attention should be paid to the sensible solution to the conflict between the unified priority and the present legislation theory.