债权多重让与优先次序规则的确立——民法典第768条的类推适用及证立

Establishment of Priority Rules for Multiple Assignments of Credit—The Analogical Application and Justification of Article 768 of the Civil Code

摘要: 《民法典》未规定一般债权多重让与的优先次序规则，造成了司法裁判上的混乱，但是民法典第768条就保理合同应收账款多重转让确立了“登记优先、通知次优、均未登记或通知的债权受让人之间按比例受偿”的次序规则可供一般的债权多重让与类推适用。本文首先认为民法典第10条未规定补充性法源违背了立法目的构成公开的法律漏洞，因此需要借助目的性扩张的手段填补漏洞，应将民法的基本原则确定为补充性法源，基于平等原则的类推适用的正当性得以证立。其次认为制定法未规定债权多重让与的优先次序规则并非因其属于法外空间或是立法者有意的沉默，而是构成公开的法律漏洞。运用合同的构成要素理论分析可知，保理合同的要素是债权转让，无论是有追索权的抑或是无追索权的保理合同其本质都是债权转让，一般债权转让和保理合同在对法律评价起决定性作用的要素上是一致的，二者的区别不足以作出否定的法律评价，因此依照相同情形作相同处理之法理，可类推民法典第768条的规定适用于确定一般债权多重让与的优先次序规则。

Abstract: The Civil Code does not stipulate the priority rule of multiple assignments of general claims, which has caused confusion in judicial adjudication. However, Article 768 of the civil code establishes the order rule of “registration priority, notification second priority, and proportionate repayment among the assignees of claims that have not been registered or notified” for multiple assignment of general claims, which can be applied by analogy. Firstly, this paper argues that Article 10 of the civil code does not stipulate supplementary sources of law, which violates the legislative purpose and constitutes an open legal loophole. Therefore, the loophole needs to be filled by means of purposive expansion. The basic principles of civil law should be identified as supplementary sources of law, and the legitimacy of analogy application based on the principle of equality can be proved. Secondly, it is believed that the absence of priority rules for multiple assignments of claims in the statutory law is not due to its extralegal space or intentional silence by legislators, but rather constitutes a public legal loophole. It can be seen from the theoretical analysis of the constituent elements of the contract that the element of the factoring contract is the assignment of creditor’s rights, whether it is a factoring contract with Legal recourse or a factoring contract without Legal recourse, its essence is the assignment of creditor’s rights. The general assignment of creditor’s rights and the factoring contract are the same in terms of the elements that play a decisive role in the legal evaluation. The difference between the two is not enough to make a negative evaluation. Therefore, the legal principle of the same treatment is taken in the form of photographic sympathy. It can be inferred that the provisions of Article 768 of the civil code are applicable to the priority rules for determining the repeated assignment of general claims.