我国浮动抵押权人风险问题研究

发布时间：2018-08-01 17:05

【摘要】：浮动抵押制度在我国的确立,被视为担保法领域的重大创新成果。该制度自19世纪中期产生于日不落帝国以来,先后被各国借鉴。我国在2007年颁布的《物权法》中亦确立了浮动抵押制度,至今该制度在中国已确立十载春秋。浮动抵押制度作为"舶来品",自它在我国确立之日起,就以灵活、效率为特征,其设立目的在于为抵押人融资提供制度保证,方便抵押人正常经营,拓宽其融资渠道,物尽其用,从而与固定担保"动"、"静"相宜,促进经济发展。我国的担保法在创设之初借鉴移植与本土化相结合,具有中国特色。经过十年的实践与发展,浮动抵押制度在理论层面更臻成熟。但立法者以保守的态度在《物权法》当中仅以三个条文的形式确立浮动抵押制度,而非效仿英美以专门章节的形式具体翔实的规定该制度,且相关司法解释也未对浮动抵押实施过程中的相关问题做出明确解释。浮动抵押制度在实施中遇到的问题逐渐凸显,使得浮动抵押当事人面临较固定担保而言,显而易见的风险,尤其是浮动抵押权人。本文以动态的思维,按照发现问题、分析问题和解决问题的研究方法,对浮动抵押权人面临的风险进行分析,文章研究内容涵盖浮动抵押的设立、运行以及结晶后实现浮动抵押权的整个过程。本文分为三个部分。第一部分主要分析浮动抵押权人在设立浮动抵押时面临的风险。该部分共两节。第一节,介绍英国浮动抵押设抵主体的范围以及我国《物权法》当中的规定,从设抵主体(浮动抵押人)角度分析浮动抵押权人面临的风险,并提出解决对策。第二节,主要从浮动抵押的设立生效方式入手,介绍了国外与我国浮动抵押的设立生效方式,并分析这种公示方式带给浮动抵押权人的潜在风险,提出明确登记机关、事项和登记时间的解决对策。第二部分,研究浮动抵押运行过程中的风险。该部分共分为三节,分别从浮动抵押权设立后,浮动抵押结晶前,浮动抵押人面临的来自浮动抵押人的自由处分行为、正常经营中买受人的潜在"威胁"以及抵押物价值变化方面的风险,并分析其原因,提出确立限制性条款,引入第三方监管浮动抵押物制度的解决对策。第三部分,研究浮动抵押结晶后浮动抵押权人可能面临的风险。该部分共三节。第一节分析抵押权人在抵押物结晶后,实现抵押权时面临的风险,并分析其原因,提出构建我国的接管人制度。第二节分析破产程序中浮动抵押权人面临的两种风险,分析该风险原因所在,并提出应明确抵押顺位的对策,以保障浮动抵押权人的利益。第三节分析浮动抵押权人是否享有破产程序中的别除权,对此有否定与肯定两种学说,在介绍该两种学说的基础上,提出笔者的观点。
[Abstract]:The establishment of floating charge system in China is regarded as a major innovation in the field of security law. The system has been used for reference by many countries since it emerged from the empire in the mid-19th century. The floating charge system was also established in the Real right Law promulgated in China in 2007, and it has been established in China for ten years. As an "import", the floating charge system has been characterized by flexibility and efficiency since it was established in our country. The purpose of its establishment is to provide a system guarantee for mortgagors' financing, facilitate the mortgagor's normal operation, and broaden its financing channels. Make the best use of the material, thus with the fixed guarantee "move", "quiet" suitable, promote economic development. At the beginning of its establishment, the guarantee law of our country combines transplantation with localization, and it has Chinese characteristics. After ten years of practice and development, the floating charge system is more mature in theory. However, the legislator conservatively established the floating charge system in the form of only three articles in the Real right Law, rather than following the specific detailed provisions in the form of special chapters in the United States and the United States. And the relevant judicial explanation has not made the explicit explanation to the related question in the floating charge implementation process. The problems encountered in the implementation of the floating mortgage system gradually become prominent, which makes the floating mortgage parties face a relatively fixed security, the obvious risk, especially the floating mortgagee. Based on dynamic thinking, according to the research methods of problem finding, problem analysis and problem solving, this paper analyzes the risks faced by floating mortgage holders. The content of this paper covers the establishment of floating mortgage. Operation and crystallization of the realization of the whole process of floating mortgage. This paper is divided into three parts. The first part mainly analyzes the risk that floating mortgagee faces when setting up floating mortgage. There are two sections in this part. The first section introduces the scope of the subject of the floating mortgage in Britain and the provisions in our country's Real right Law, analyzes the risks faced by the floating mortgagee from the perspective of the subject (floating mortgagor), and puts forward some countermeasures. The second section, mainly from the floating mortgage establishment effective way, introduced the foreign and our country floating charge establishment effective way, and analyzed this kind of public way to bring the floating mortgagee potential risk, proposed the clear registration authority, Solutions to matters and registration time. The second part studies the risk of floating charge. This part is divided into three sections. After the establishment of floating mortgage and before the crystallization of floating mortgage, the floating mortgagor faces the behavior of free disposition from the floating mortgagor. In normal operation, the buyer's potential "threat" and the risk of the change in the value of collateral are analyzed, and the reasons are analyzed, and the countermeasures of establishing the restrictive clause and introducing the third party to supervise the floating mortgage system are put forward. The third part studies the risk that floating mortgagee may face after floating mortgage crystallization. This part has three sections. The first section analyzes the risks that the mortgagee faces in realizing the mortgage after the mortgagee crystallizes, and analyzes the reasons, and puts forward the construction of the receiver system in our country. The second section analyzes the two kinds of risks faced by floating mortgagee in bankruptcy procedure, analyzes the reasons for this risk, and puts forward some countermeasures to ensure the interests of floating mortgagee. The third section analyzes whether the floating mortgagee enjoys the special exemption right in the bankruptcy proceedings, and there are two theories of negation and affirmation. On the basis of introducing the two theories, the author puts forward the author's point of view.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.2

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