我國(guó)不動(dòng)產(chǎn)抵押物轉(zhuǎn)讓規(guī)則研究
發(fā)布時(shí)間：2019-03-03 10:31
【摘要】：有關(guān)抵押物能否自由轉(zhuǎn)讓的問題,我國(guó)立法經(jīng)歷了《民法通則》、《擔(dān)保法》、《擔(dān)保法司法解釋》、《物權(quán)法》的變遷。從《民法通則》“未經(jīng)抵押權(quán)人同意轉(zhuǎn)讓無效”的規(guī)定,到《擔(dān)保法》通知告知義務(wù)的設(shè)置,立法者的態(tài)度有所緩和,到《擔(dān)保法司法解釋》認(rèn)可抵押物可以自由轉(zhuǎn)讓,其緩和態(tài)度達(dá)到巔峰,繼而在《物權(quán)法》中回落,“未經(jīng)抵押權(quán)人同意不得轉(zhuǎn)讓”的表述表明其采取了限制轉(zhuǎn)讓的立場(chǎng)。抵押物轉(zhuǎn)讓涉及抵押人、抵押權(quán)人和受讓人三方當(dāng)事人。既牽涉物的流轉(zhuǎn),又影響交易安全,故其相關(guān)規(guī)則的合理制定尤為重要。在制定規(guī)則平衡三方當(dāng)事人利益之前,需首先解決抵押物能否自由轉(zhuǎn)讓的問題。各學(xué)者關(guān)于自由轉(zhuǎn)讓的擔(dān)憂并不存在,抵押物自由轉(zhuǎn)讓不僅是各國(guó)立法通例,也符合物權(quán)法所有權(quán)和定限物權(quán)的基本理論,對(duì)抵押權(quán)人和受讓人通過配套制度的設(shè)計(jì)亦無不利影響。在抵押物可以自由轉(zhuǎn)讓的基礎(chǔ)上,抵押權(quán)人的利益保護(hù)問題急需解決。有關(guān)抵押權(quán)人的利益保護(hù),存在追及力和轉(zhuǎn)讓價(jià)金物上代位性兩種選擇。衡量追及力和轉(zhuǎn)讓價(jià)金物上代位性會(huì)發(fā)現(xiàn):通過邏輯論證、體系解釋、登記制度的完善和物權(quán)公示公信制度的發(fā)展等方面可以證成抵押權(quán)應(yīng)具有追及力,追及力的存在使得抵押權(quán)人在抵押人轉(zhuǎn)讓抵押物而沒有清償債務(wù)時(shí)可以就變賣價(jià)金行使優(yōu)先受償權(quán),對(duì)抵押權(quán)人的利益起到很好的保護(hù)作用;而抵押物轉(zhuǎn)讓價(jià)金的物上代位性不僅在我國(guó)并未有法律的明文規(guī)定,配套制度如提前清償或者提存的不健全也給轉(zhuǎn)讓價(jià)金物上代位性的實(shí)行帶來很大困難。由此,承認(rèn)抵押權(quán)的追及力為保護(hù)抵押權(quán)人利益的最佳選擇。除抵押權(quán)人外,受讓人的利益同樣不容忽視。代為清償制度已為我國(guó)《物權(quán)法》第191條所承認(rèn),該條賦予受讓人清償?shù)盅簷?quán)人債權(quán)從而消滅抵押權(quán)的權(quán)利,在抵押物價(jià)值高于擔(dān)保債權(quán)額時(shí)具有適用空間。但在抵押物價(jià)值低于或等于擔(dān)保債權(quán)額時(shí),代為清償制度無適用空間,需要在代價(jià)清償和滌除權(quán)中做出選擇。代價(jià)清償因其主動(dòng)權(quán)掌握在抵押權(quán)人手中而在實(shí)踐中應(yīng)用很少,滌除制度剛好彌補(bǔ)了這點(diǎn)不足,但滌除制度因?yàn)閷?duì)抵押權(quán)人造成過重的負(fù)擔(dān)也屢遭垢病,唯修正后的《日本民法典》通過抵押權(quán)消滅請(qǐng)求權(quán)對(duì)滌除制度進(jìn)行了完善,一方面保留了滌除制度所具有的主動(dòng)權(quán)掌握在受讓人手中的優(yōu)勢(shì),另一方面廢除了可能會(huì)對(duì)抵押權(quán)人造成影響的增價(jià)拍賣制度和增擔(dān)保請(qǐng)求權(quán),我國(guó)未來立法應(yīng)予借鑒。綜上,在承認(rèn)抵押物可以自由轉(zhuǎn)讓的基礎(chǔ)上,“追及力+代為清償+抵押權(quán)消滅請(qǐng)求權(quán)”的制度搭配,既可以促進(jìn)物的流轉(zhuǎn),又能有效保護(hù)各方當(dāng)事人的利益,我國(guó)未來立法宜采這種觀點(diǎn)。
[Abstract]:The legislation of our country has experienced the vicissitudes of the General principles of Civil Law, the Judicial interpretation of guarantee Law and the Real right Law on the question of whether or not collateral can be transferred freely. From the "invalidity of assignment without the consent of the mortgagee" stipulated in the General provisions of the Civil Law, to the establishment of the notification obligation in the Law of guarantee, the attitude of the legislator has been eased, and the Judicial interpretation of the guarantee Law has approved that collateral can be freely transferred. Its easing attitude reached its peak and then fell back in the property Law. The expression "no assignment without the consent of the mortgagee" indicates that it has adopted a position of limiting the transfer. The transfer of mortgaged property involves the mortgagor, mortgagee and assignee. Not only involved in the transfer of objects, but also affect the security of transactions, so the reasonable formulation of its relevant rules is particularly important. Before making rules to balance the interests of the three parties, the problem of free transfer of collateral should be solved first. The concern of scholars about free transfer does not exist. The free transfer of mortgaged property is not only the general legislation of various countries, but also accords with the basic theory of the ownership of property law and the limitation of real right. There is no adverse effect on the design of the mortgagee and transferee through the supporting system. On the basis that collateral can be transferred freely, the protection of mortgagee's interests needs to be solved urgently. There are two options to protect the interests of mortgagors: recourse power and subrogation of transferable gold. Through logical demonstration, system explanation, perfection of registration system and development of public trust system of real right, it can be found that the right to become mortgage should be able to catch up through logic demonstration and subrogation of transferable price gold property. The existence of recourse makes the mortgagee can exercise the right of priority on the realization of the sale price when the mortgagor transfers the mortgagor but does not pay off the debt, which plays a very good role in protecting the interests of the mortgagee. However, the subrogation of the transfer price of collateral not only has no explicit provisions in our country, but also brings great difficulties to the implementation of subrogation in the transfer price, such as early settlement or imperfection of deposit. Therefore, it is the best choice to protect the interests of mortgagee by recognizing the pursuing power of mortgage. In addition to the mortgagee, the interests of the assignee should not be ignored. The system of subrogation has been recognized by Article 191 of the property Law of our country, which gives the assignee the right to pay off the mortgagee's claim and eliminate the mortgage, which has the applicable space when the value of the mortgaged property is higher than the amount of the secured debt. However, when the value of collateral is less than or equal to the amount of secured debt, there is no room for settlement in lieu, so it is necessary to choose between the settlement of costs and the right of elimination. Cost satisfaction is rarely used in practice because of its initiative in the hands of mortgagors, and the removal system just makes up for this deficiency, but the removal system also suffers from scaling diseases because of the excessive burden it causes to mortgagors. Only the amended Civil Code of Japan has perfected the elimination system through the right of claim for the elimination of mortgage, on the one hand, it has retained the advantages of the initiative of the elimination system in the hands of the assignee, On the other hand, it repeals the auction system and claim right which may affect the mortgagee, so the future legislation of our country should be used for reference. In summary, on the basis of recognizing that collateral can be freely transferred, the system collocation of "pursuing and acting for the discharge of mortgage right to eliminate claim" can not only promote the circulation of property, but also effectively protect the interests of the parties involved. This view should be adopted in China's future legislation.
【學(xué)位授予單位】：南京師范大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2017
【分類號(hào)】：D923.2
本文編號(hào)：2433617
[Abstract]:The legislation of our country has experienced the vicissitudes of the General principles of Civil Law, the Judicial interpretation of guarantee Law and the Real right Law on the question of whether or not collateral can be transferred freely. From the "invalidity of assignment without the consent of the mortgagee" stipulated in the General provisions of the Civil Law, to the establishment of the notification obligation in the Law of guarantee, the attitude of the legislator has been eased, and the Judicial interpretation of the guarantee Law has approved that collateral can be freely transferred. Its easing attitude reached its peak and then fell back in the property Law. The expression "no assignment without the consent of the mortgagee" indicates that it has adopted a position of limiting the transfer. The transfer of mortgaged property involves the mortgagor, mortgagee and assignee. Not only involved in the transfer of objects, but also affect the security of transactions, so the reasonable formulation of its relevant rules is particularly important. Before making rules to balance the interests of the three parties, the problem of free transfer of collateral should be solved first. The concern of scholars about free transfer does not exist. The free transfer of mortgaged property is not only the general legislation of various countries, but also accords with the basic theory of the ownership of property law and the limitation of real right. There is no adverse effect on the design of the mortgagee and transferee through the supporting system. On the basis that collateral can be transferred freely, the protection of mortgagee's interests needs to be solved urgently. There are two options to protect the interests of mortgagors: recourse power and subrogation of transferable gold. Through logical demonstration, system explanation, perfection of registration system and development of public trust system of real right, it can be found that the right to become mortgage should be able to catch up through logic demonstration and subrogation of transferable price gold property. The existence of recourse makes the mortgagee can exercise the right of priority on the realization of the sale price when the mortgagor transfers the mortgagor but does not pay off the debt, which plays a very good role in protecting the interests of the mortgagee. However, the subrogation of the transfer price of collateral not only has no explicit provisions in our country, but also brings great difficulties to the implementation of subrogation in the transfer price, such as early settlement or imperfection of deposit. Therefore, it is the best choice to protect the interests of mortgagee by recognizing the pursuing power of mortgage. In addition to the mortgagee, the interests of the assignee should not be ignored. The system of subrogation has been recognized by Article 191 of the property Law of our country, which gives the assignee the right to pay off the mortgagee's claim and eliminate the mortgage, which has the applicable space when the value of the mortgaged property is higher than the amount of the secured debt. However, when the value of collateral is less than or equal to the amount of secured debt, there is no room for settlement in lieu, so it is necessary to choose between the settlement of costs and the right of elimination. Cost satisfaction is rarely used in practice because of its initiative in the hands of mortgagors, and the removal system just makes up for this deficiency, but the removal system also suffers from scaling diseases because of the excessive burden it causes to mortgagors. Only the amended Civil Code of Japan has perfected the elimination system through the right of claim for the elimination of mortgage, on the one hand, it has retained the advantages of the initiative of the elimination system in the hands of the assignee, On the other hand, it repeals the auction system and claim right which may affect the mortgagee, so the future legislation of our country should be used for reference. In summary, on the basis of recognizing that collateral can be freely transferred, the system collocation of "pursuing and acting for the discharge of mortgage right to eliminate claim" can not only promote the circulation of property, but also effectively protect the interests of the parties involved. This view should be adopted in China's future legislation.
【學(xué)位授予單位】：南京師范大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2017
【分類號(hào)】：D923.2
【參考文獻(xiàn)】
相關(guān)期刊論文 前10條
1 崔建遠(yuǎn);;民法分則物權(quán)編立法研究[J];中國(guó)法學(xué);2017年02期
2 徐福山;;不動(dòng)產(chǎn)抵押物的轉(zhuǎn)讓——結(jié)合《物權(quán)法》第191條之規(guī)定[J];中外企業(yè)家;2016年28期
3 袁鵬;;不動(dòng)產(chǎn)抵押物轉(zhuǎn)讓規(guī)則新詮[J];法學(xué)評(píng)論;2016年03期
4 鄭曉劍;;比例原則在民法上的適用及展開[J];中國(guó)法學(xué);2016年02期
5 鄭倩;;法律解釋視角下抵押物轉(zhuǎn)讓的效力——對(duì)《物權(quán)法》第191條的新詮釋[J];山東社會(huì)科學(xué);2015年05期
6 王洪亮;;不動(dòng)產(chǎn)抵押物轉(zhuǎn)讓規(guī)則新解[J];財(cái)經(jīng)法學(xué);2015年02期
7 沈丹丹;;不動(dòng)產(chǎn)抵押物轉(zhuǎn)讓合同繼續(xù)履行障礙及解決[J];法律適用;2015年03期
8 程嘯;;論抵押財(cái)產(chǎn)的轉(zhuǎn)讓 “重慶索特鹽化股份有限公司與重慶新萬基房地產(chǎn)開發(fā)有限公司土地使用權(quán)轉(zhuǎn)讓合同糾紛案”評(píng)釋[J];中外法學(xué);2014年05期
9 王利明;;抵押財(cái)產(chǎn)轉(zhuǎn)讓的法律規(guī)制[J];法學(xué);2014年01期
10 劉貴祥;吳光榮;;論未經(jīng)抵押權(quán)人同意之抵押物轉(zhuǎn)讓的效力[J];比較法研究;2013年05期
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