浅谈我国典当制度的法律规制
发布时间：2018-12-29 15:21
【摘要】：典当在我国有着悠久的历史,纵观历史长河,典当业在我国经历了萌芽一发展—鼎盛—衰退—复兴的历史变迁。典当的发展大致概括为：萌芽于两汉时期,肇始于南朝佛寺,入俗于大唐五代,立行于南北两宋,兴盛于明清两季,衰落于清末民初,复兴于当代改革。新中国成立后,典当业曾一度消失,直至1987年,典当业重新复出,复兴后的典当业伴随着社会经济的发展而呈蓬勃向上之势,但典当立法并没有紧跟典当业发展的步伐,在民事法律体系日趋完备的今天,典当仍然游离于基本立法之外。在理论界,对典当基本理论的研究有所停滞,至今仍存在一些模糊认识,将典当等同于典权、将典当权等同于营业质权等；在立法上,规范典当的是商务部、公安部颁布的《典当管理办法》(以下简称《办法》),其位阶较低；在司法实践中,法官对进入诉讼领域的典当纠纷,从案由、合同性质及效力认定乃至最终的审判结果存在不同意见；在政府管理层,对于典当企业的定位至今没有主流观点。理论上的分歧、立法上的不足、司法实践中的困境、政府管理上的模糊在一定程度上阻碍了典当业的长远发展。 本文第一部分从我国典当制度的历史发展着手论述,通过分析,提出现代典当与传统典当的不同,并通过对比,简单介绍现行《典当管理办法》(以下简称《办法》)的基本内容,对典当行业现状、社会作用及立法现状进行基本的展现。第二部分对典当制度的基本理论问题进行探究,对典当的内涵、典当的基本法律关系、典当的基本特点,典当权的性质以及典当与相关法律概念进行辨析,在分析比较的基础上,提出笔者的观点,为下一步的改进作好铺垫。第三部分笔者以在审判实践中遇到的真实案件为例,阐述了典当制度在司法实践中的困境,主要体现在：案由不统一、合同效力认定不统一、利息及综合费用计算不统一、法律适用不统一等。第四部分重点对我国典当制度进行反思与完善,指出了典当法律制度方面存在的问题：我国在典当立法方面一直存在争议,现行规范典当业的《办法》法律位阶较低,且与《合同法》、《担保法》等主要法律之间存在冲突,《办法》自身内容部分过于笼统,不具有可操作性等,在分析其不足的基础上,提出了对我国典当法律制度进行完善的建议：一是以《物权法》修正案形式明确规定典当权；二是参考其它国家的做法,制定一部位阶较高的典当商法；三是对典当立法的具体内容进行了建议。 笔者深知,典当法律制度的完善决不是一朝一夕之功,由于笔者水平所限,对典当的法理探究也只是窥豹一斑,但笔者坚信,真理愈辨愈明,希望此文可以抛砖引玉,使更多的法学同行加入了典当的研究中来,使典当业的发展不再游离于立法体系之外。
[Abstract]:Pawnbroking has a long history in our country. The development of pawn is summarized as follows: sprouting in the Han Dynasty, beginning in the Buddhist temple of the Southern Dynasty, entering the customs in the Great Tang and five dynasties, standing in the two Song dynasties, flourishing in the Ming and Qing dynasties, declining in the late Qing Dynasty and the beginning of the Republic, and reviving the contemporary reform. After the founding of New China, pawnbroking disappeared for a time, until 1987, when pawnbroking came back again. With the development of social economy, the pawn business after renaissance took on a vigorous and upward trend, but the pawn legislation did not keep pace with the development of pawnbroking. In the civil law system is increasingly complete today, pawn is still free from the basic legislation. In the theoretical circle, the research on the basic theory of pawnshop has stagnated, and there are still some vague understandings, which equate pawn with pawn right, pawn right with business pledge right and so on. In legislation, the Ministry of Commerce, Ministry of Public Security promulgated the "pawn management measures" (hereinafter referred to as "measures"), its rank is lower; In judicial practice, judges have different opinions on pawn disputes in the field of litigation, such as the cause of the case, the nature and validity of the contract, and even the final result of the trial; in the management of the government, there is no mainstream view on the positioning of pawnbroking enterprises up to now. The differences in theory, the deficiency in legislation, the dilemma in judicial practice and the ambiguity in government management hinder the long-term development of pawnbroking to a certain extent. The first part of this paper begins with the historical development of pawn system in our country. Through analysis, it points out the differences between modern pawn and traditional pawn, and compares them with each other. This paper briefly introduces the basic contents of the current management method of pawn (hereinafter referred to as "the method"), and presents the present situation of pawn industry, social function and legislation. The second part explores the basic theoretical problems of pawn system, analyzes the connotation of pawn, the basic legal relationship of pawn, the basic characteristics of pawn, the nature of pawn right and the concept of pawn and related law. On the basis of analysis and comparison, this paper puts forward the author's point of view and paves the way for further improvement. In the third part, taking the real cases in trial practice as an example, the author expounds the dilemma of pawn system in judicial practice, which is mainly reflected in the disunity of the cause of the case, the inconsistency of the validity of the contract, the disunity of the calculation of interest and the comprehensive cost. The application of the law is not uniform, etc. The fourth part focuses on the reflection and improvement of the pawn system in China, pointing out the problems in the pawn legal system: there have been disputes in the legislation of pawn in our country, and the legal rank of the current regulation of pawnbroking is relatively low. And there are conflicts with the main laws, such as contract Law, guarantee Law, etc., the contents of which are too general and not operable, etc., on the basis of analyzing their shortcomings, Some suggestions are put forward to perfect the pawn legal system of our country. Firstly, the pawn right is clearly stipulated in the form of the amendment of Real right Law; The second is to draw up a high rank pawn law with reference to the practice of other countries, and the third is to make suggestions on the specific content of pawn legislation. The author is well aware that the perfection of the pawn legal system is by no means an overnight achievement. Due to the limitations of the author's level, the legal research on pawn is only a peep into the panorama, but the author firmly believes that the more the truth is distinguished, the more clear it is, and I hope this article can draw on the jade. So that more law professionals join the pawn research, so that the development of pawnbroking is no longer free from the legislative system.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D923
[Abstract]:Pawnbroking has a long history in our country. The development of pawn is summarized as follows: sprouting in the Han Dynasty, beginning in the Buddhist temple of the Southern Dynasty, entering the customs in the Great Tang and five dynasties, standing in the two Song dynasties, flourishing in the Ming and Qing dynasties, declining in the late Qing Dynasty and the beginning of the Republic, and reviving the contemporary reform. After the founding of New China, pawnbroking disappeared for a time, until 1987, when pawnbroking came back again. With the development of social economy, the pawn business after renaissance took on a vigorous and upward trend, but the pawn legislation did not keep pace with the development of pawnbroking. In the civil law system is increasingly complete today, pawn is still free from the basic legislation. In the theoretical circle, the research on the basic theory of pawnshop has stagnated, and there are still some vague understandings, which equate pawn with pawn right, pawn right with business pledge right and so on. In legislation, the Ministry of Commerce, Ministry of Public Security promulgated the "pawn management measures" (hereinafter referred to as "measures"), its rank is lower; In judicial practice, judges have different opinions on pawn disputes in the field of litigation, such as the cause of the case, the nature and validity of the contract, and even the final result of the trial; in the management of the government, there is no mainstream view on the positioning of pawnbroking enterprises up to now. The differences in theory, the deficiency in legislation, the dilemma in judicial practice and the ambiguity in government management hinder the long-term development of pawnbroking to a certain extent. The first part of this paper begins with the historical development of pawn system in our country. Through analysis, it points out the differences between modern pawn and traditional pawn, and compares them with each other. This paper briefly introduces the basic contents of the current management method of pawn (hereinafter referred to as "the method"), and presents the present situation of pawn industry, social function and legislation. The second part explores the basic theoretical problems of pawn system, analyzes the connotation of pawn, the basic legal relationship of pawn, the basic characteristics of pawn, the nature of pawn right and the concept of pawn and related law. On the basis of analysis and comparison, this paper puts forward the author's point of view and paves the way for further improvement. In the third part, taking the real cases in trial practice as an example, the author expounds the dilemma of pawn system in judicial practice, which is mainly reflected in the disunity of the cause of the case, the inconsistency of the validity of the contract, the disunity of the calculation of interest and the comprehensive cost. The application of the law is not uniform, etc. The fourth part focuses on the reflection and improvement of the pawn system in China, pointing out the problems in the pawn legal system: there have been disputes in the legislation of pawn in our country, and the legal rank of the current regulation of pawnbroking is relatively low. And there are conflicts with the main laws, such as contract Law, guarantee Law, etc., the contents of which are too general and not operable, etc., on the basis of analyzing their shortcomings, Some suggestions are put forward to perfect the pawn legal system of our country. Firstly, the pawn right is clearly stipulated in the form of the amendment of Real right Law; The second is to draw up a high rank pawn law with reference to the practice of other countries, and the third is to make suggestions on the specific content of pawn legislation. The author is well aware that the perfection of the pawn legal system is by no means an overnight achievement. Due to the limitations of the author's level, the legal research on pawn is only a peep into the panorama, but the author firmly believes that the more the truth is distinguished, the more clear it is, and I hope this article can draw on the jade. So that more law professionals join the pawn research, so that the development of pawnbroking is no longer free from the legislative system.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D923
【参考文献】
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