论特定物债权与债权人撤销权的行使

摘要

Whether creditor on specific object can exert right of cancellation in the situation in which debtor is not on the verge of insolvency, academics and courts have different ideas, which are mainly divided into two theories. One theory advocates the creditor can exert right of cancellation in that case while the other opposes. Both theories go to extremes and would sometimes cause unfairness. The right way is to pursue a middle course here and only to allow creditor on specific object irreplaceable exert right of cancellation in principle.%关于特定物债权人得否于债务人尚未陷于无资力时，行使撤销权，学说判例存在不同见解，有肯定说和限制肯定说。这两种学说均有走向极端的嫌疑，肯定说承认特定物债权人享有撤销权，有欠妥当；限制肯定说否认其享有撤销权，也存在理论上的矛盾，有时甚至导致不公。正确的做法是寻求折中的方案，即原则上仅允许不可替代特定物的债权人行使撤销权。