养老服务消费者优先受偿权的理论正当性研究——以预付式消费为例

On the Theoretical Justification of Consumers’ Priority of Compensation in Prepaid Consumption of Elderly Care Services—Taking Prepaid Consumption as an Example

摘要: 针对养老服务预付式消费中机构爆雷引发养老债权灭失这一情形，本文通过运用顺序权理论与优先权二元论对养老债权进行法理定性，并结合法经济学中的最低成本避险者与外部性内部化理论，通过规范分析与利益衡量的方法设计受偿顺位规则，旨在论证构建消费者优先受偿权的理论正当性，并寻求生存权保障与交易安全维护之间的平衡。研究表明，将养老债权重构为以生存保障为基础的法定分配性顺序权，能有效修正债权平等原则的局限，且确立其优先位阶使得风险由专业机构承担，可遏制经营风险向公共财政的负外部性溢出。构建养老服务优先受偿权是落实宪法生存权保障的必然要求，可在确保老年人基本生存利益的前提下，最大限度地维护金融信贷市场的稳定性。

Abstract: In response to the loss of elderly care claims caused by the collapse of institutions in the prepaid consumption of elderly care services, this paper conducts a jurisprudential characterization of elderly care claims by applying the theory of sequential rights and the dualism of priority rights. Combined with the theories of the least-cost risk avoider and internalization of externalities in law and economics, it designs the claim payment priority rules through normative analysis and interest measurement methods. The paper aims to demonstrate the theoretical justification for constructing consumers’ priority of compensation and seek a balance between the protection of the right to subsistence and the maintenance of transaction security. The study shows that reconstructing elderly care claims as statutory distributive sequential rights based on subsistence security can effectively revise the limitations of the principle of creditor’s rights equality. Establishing their priority ranking shifts risks to professional institutions and curbs the negative external spillover of operational risks to public finance. Constructing the priority of compensation for elderly care services is an inevitable requirement for implementing the constitutional protection of the right to subsistence, which can maximize the stability of the financial credit market on the premise of safeguarding the basic subsistence interests of the elderly.