论让与担保制度在我国的建立

发布时间：2017-12-28 07:40

本文关键词：论让与担保制度在我国的建立　出处：《吉林大学》2016年硕士论文　论文类型：学位论文

【摘要】：从上世纪九十年代我国开始《物权法》立法时起,让与担保制度是否应该被纳入法律当中就一直存有争议,最终物权法典并没有规定让与担保。最高人民法院在2015年8月6日发布了《最高人民法院关于审理民间借贷案件适用法律若干问题的规定》(以下简称《民间借贷规定》)。其中第24条被起草者宣扬为让与担保的规定,于是让与担保在沉寂了七年之后又一次成为各界讨论的热点。既然让与担保已经被纳入了司法解释,是否有必要将其规定在未来的民法典当中呢?如果答案是肯定的,我们又该如何设计将来的立法呢?笔者正是基于这一假设,并结合对第24条的思考,展开了我国建立让与担保制度这一问题的研究。本文从让与担保的历史发展入手,探寻让与担保初始产生的原因和背景、应用,让我们对原始让与担保制度有个大概了解。阅读它的历史之后,我们会发现让与担保其实是一项很古老的制度,甚至早于常听说的抵押、质押制度。在对全世界有广泛影响的古罗马法、古日耳曼法当中均能寻得让与担保的踪迹,说明它极具普遍性。让与担保在德日台的发展告诉我们,世界各主要国家和地区(尤其是大陆法系国家和地区)一直在为让与担保的应用扫除障碍,通过判例、学说为其发展提供支持。这也说明了让与担保在世界范围内的发展趋势,就是合法化、制度化。把握了让与担保的发展方向后,笔者开始对其进行理论剖析。在让与担保的概念界定上,笔者提出了标的无限制,实行可清算的主张。在让与担保的法律构成上,由于担保权构成说完全忽略外观形式,笔者主张采纳以所有权构成说为基础的德国期待权说,这样可以更好的平衡债权人和债务人之间的利益。理论问题廓清后,要需要解决如何建立让与担保制度的问题。笔者通过比较,发现让与担保比传统担保方式在标的范围,实现方式,交易成本,交易安全等方面均有突出优势。一项制度如果没有现实需求也无法说明该项立法是必要的。笔者对融资融券和信托收据的法律构造进行解析,发现它们是让与担保的类型化应用,这说明让与担保在我国有充足的应用空间。我国正在编纂民法典,一系列新旧法律重新整合在所难免,这使得让与担保的立法成本大大降低。与此同时它带来的经济利益越来越多,立法能获得净收益,符合成本效益原则。更值得一提的是让与担保可以帮助弱者获得融资用以发展壮大,体现社会主义法律制度的温性,增进社会公平正义。在让与担保的立法可行性问题上,因当事人的意思表示中存在法效果意思,所以让与担保不构成虚伪意思表示。通过赋予债务人主张清算的权利也可以解决流质契约的问题。由于笔者主张的期待权法律构成说承认债权人享有所有权而非新物权,因此让与担保不违反物权法定原则。《民间借贷规定》第24条适用范围极其狭隘,且与传统让与担保概念不相符合,不能发挥普遍性调整作用,因此需要进一步展开体系化立法规定。而且,现有比较法资料能够说明成文化是让与担保的立法趋势。在立法体例的选择上,由于让与担保权是一种担保物权,所以不宜放在民法典的物权编。考虑到让与担保标的范围的广泛性,也不宜采纳民法典的债权编模式。最后笔者主张采用组合式立法方式。在未来的民法典中可以设专章规定各种类型担保,明确规定可以以转让所有权的形式提供担保。在信托法内容中加入“担保信托”,为让与担保提供理论支撑。同时,配合有关登记的单行法,维护公示公信原则。在让与担保的公示方面,笔者主张使用互联网技术进行电子化登记。全国联网后可以实行分别登记、统一查询。为防止当事人的信息暴露,笔者主张将登记内容精简化、线索化。综上,笔者主张通过理论和制度双重保障,建立我国的让与担保制度,与世界接轨。
[Abstract]:Since the beginning of the "property law" legislation in 90s of last century, whether the transfer guarantee system should be included in the law has been controversial. In August 6, 2015, the Supreme People's Court issued the Supreme People's court's provisions on Several Issues concerning the application of law in private lending cases (hereinafter referred to as "Regulations on private lending"). Twenty-fourth of them have been drafted as the provision of transfer guarantee, so the transfer guarantee has become the hot spot of discussion in all walks of life after the silence for seven years. Since the guarantee has been included in the judicial interpretation, whether it is necessary to set pawn in the future civil code? If the answer is yes, how can we design the future legislation? The author is based on the assumption that, combined with the consideration of article twenty-fourth, launched a study of this problem the establishment of assignment the security system of china. Starting from the historical development of the transfer guarantee, we explore the causes, background and application of the initial guarantee, and let us have a general understanding of the original transfer guarantee system. After reading its history, we will find that the guarantee of transfer is a very old system, even as early as the commonly heard mortgage and pledge system. In the ancient Rome law and the ancient Germanic law, which had extensive influence on the world, it was found that it was very universal. The development of the transfer guarantee in Germany and Japan tells us that the major countries and regions in the world, especially the continental law system countries and regions, have been removing obstacles to the application of the transfer guarantee, providing support for their development through precedents and doctrines. This also shows that the development trend of transfer guarantee in the world is legalization and institutionalization. After grasping the development direction of transfer guarantee, the author began to analyze it theoretically. On the definition of the concept of transfer guarantee, the author put forward the unrestricted standard and put forward the claim that can be liquidated. As for the legal composition of the transfer guarantee, because the constitution of the right to guarantee totally ignores the appearance, I advocate adopting the German expectant right theory based on the theory of ownership formation, which can better balance the interests between creditors and debtors. After the clarification of the theoretical problems, it is necessary to solve the problem of how to establish the system of transfer guarantee. Through comparison, the author finds that the transfer guarantee has a prominent advantage in the scope, the way of realization, the transaction cost and the safety of the transaction than the traditional guarantee. If there is no real demand for a system, it is impossible to show that the legislation is necessary. The author analyzes the legal structure of margin trading and trust receipt, and finds that they are the application of the assignment guarantee, which means that the application of the transfer guarantee has enough application space in our country. In our country, the civil code is codification, and a series of new and old laws are reintegrated. This makes the cost of the legislation of transfer guarantee greatly reduced. At the same time, it has brought more and more economic benefits, and the legislation can obtain net income, which is in accordance with the principle of cost-effectiveness. It is also worth mentioning that the guarantee can help the weak to obtain financing for development, reflect the temperature of the socialist legal system, and promote social justice and justice. On the issue of the legislative feasibility of transfer guarantee, because of the meaning of the legal effect in the expression of the party's meaning, the transfer guarantee does not constitute a hypocritical meaning. By giving the debtor the right to claim liquidation, it can also solve the problem of the fluid contract. Because the legal constitution of the expectation right of the author claims that the creditor enjoys the ownership rather than the new property right, so the transfer guarantee is not in violation of the legal principle of real right. The application scope of the twenty-fourth item of private lending regulation is extremely narrow, and it is not consistent with the traditional concept of transfer guarantee, and can not play a universal role of adjustment. Therefore, we need to further expand the legislative provisions of the system. Moreover, the existing comparative law data can show that the culture is the legislative trend of transfer guarantee. In the choice of legislative style, as the transfer of security is a kind of security right, it is not suitable to be placed in the code of real right of the civil code. Considering the universality of the scope of the bid guarantee, it is not suitable to adopt the model of the compiling of the creditor's rights in the civil code. Finally, the author advocates the adoption of combined legislation. In the future civil code provisions can set various types of Guarantees specified can provide guarantees to transfer of ownership form. The "guarantee trust" is added to the content of the trust law to provide theoretical support for the transfer of guarantee. At the same time, the principle of public credit is maintained in accordance with the single law of registration. In the publicity of transfer guarantee, the author advocates the use of Internet technology for electronic registration. After the national network, the registration and the unified inquiry can be carried out separately. In order to prevent the information exposure of the parties, the author advocates the simplification and clue of the registration content. To sum up, the author advocates the establishment of our country's transfer guarantee system through the dual guarantee of theory and system, which is in line with the world.
【学位授予单位】：吉林大学
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：D923.2

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