破产程序中税收债权与担保物权的冲突与弥合——一个法律解释的方法

破产程序中税收债权与担保物权之间存在冲突,冲突的成因主要为特别法与一般法的识别问题、存在留白的法律漏洞、债权与物权之间冲突等。但这种冲突的解决,可以通过特别法解释与体系解释,“债一物”区分原理,利益衡量、比较法解释等的分析,得出破产清算程序中担保物权应优先于税收债权的结论,并不需要通过耗时、耗力的专门立法修订予以弥合。

Resolution of the Conflict between Tax Obligation and Secured Interest in Bankruptcy Procedure:A legal Interpretation

The tax obligation is contradicting with the secured interest in the Bankruptcy procedure,which is caused by the ambiguity of identification of special laws and general laws,legal loopholes,and conflicts between obligatory rights and property rights.However,this contradiction can be resolved by legal interpretation,not necessarily by time-consuming and wearying special legislation,because this paper argues that secured interest shall take priority over tax obligation in bankruptcy procedure after careful analysis of the relationship between the special laws and general laws and the principle of debt-property distinction,benefitcost analysis and comparative legal interpretation.