我國債務清理法制在消費者債務清理條例通過後進入新紀元，於今年四月正式施行。消費者債務清理條例在全國一致引頸企盼下，迅速通過，希望能夠因應社會上的「雙卡風暴」，提供債權人及債務人公開溝通之管道，幫助經濟上限於破綻之債務人重新出發。然而在整部消費者債務清理條例中，對於擔保權之處置，將影響該法落實之效果，並直接撼動「自用住宅借款特別條款」之立法目的。本文目的在探討擔保權之性質，並說明其於債務清理法制體系中之地位，再以美國實行破產法之經驗為借鏡，對於我國消費者債務清理條例以至於目前之債務清理法草案提出檢討與建議。 The passage of Consumer Insolvency Code, which has officially come in effect since this April, has brought insolvency law of this country into a new era. In the public’s eager anticipation, it was rapidly passed in the hope of coping with the consumer debt, providing open channels of communication for the creditor and the debtor and helping insolvency debtors get back on their feet. However, the way it deals with security claim will have an impact on its own effect, and directly defeat the purpose of the special clause of debtors’ residence loan. The present article aims to probe into the essence of security claim and account for its role in the insolvency law; in addition, this article, by drawing the examples and experiences from the practice of Bankruptcy Code in the U.S.A., provides some a critique and some suggestions for Consumer Insolvency Code and the current Bill of Insolvency Law.
