我国不动产抵押物转让规则研究
发布时间：2019-03-03 10:31
【摘要】：有关抵押物能否自由转让的问题,我国立法经历了《民法通则》、《担保法》、《担保法司法解释》、《物权法》的变迁。从《民法通则》“未经抵押权人同意转让无效”的规定,到《担保法》通知告知义务的设置,立法者的态度有所缓和,到《担保法司法解释》认可抵押物可以自由转让,其缓和态度达到巅峰,继而在《物权法》中回落,“未经抵押权人同意不得转让”的表述表明其采取了限制转让的立场。抵押物转让涉及抵押人、抵押权人和受让人三方当事人。既牵涉物的流转,又影响交易安全,故其相关规则的合理制定尤为重要。在制定规则平衡三方当事人利益之前,需首先解决抵押物能否自由转让的问题。各学者关于自由转让的担忧并不存在,抵押物自由转让不仅是各国立法通例,也符合物权法所有权和定限物权的基本理论,对抵押权人和受让人通过配套制度的设计亦无不利影响。在抵押物可以自由转让的基础上,抵押权人的利益保护问题急需解决。有关抵押权人的利益保护,存在追及力和转让价金物上代位性两种选择。衡量追及力和转让价金物上代位性会发现:通过逻辑论证、体系解释、登记制度的完善和物权公示公信制度的发展等方面可以证成抵押权应具有追及力,追及力的存在使得抵押权人在抵押人转让抵押物而没有清偿债务时可以就变卖价金行使优先受偿权,对抵押权人的利益起到很好的保护作用;而抵押物转让价金的物上代位性不仅在我国并未有法律的明文规定,配套制度如提前清偿或者提存的不健全也给转让价金物上代位性的实行带来很大困难。由此,承认抵押权的追及力为保护抵押权人利益的最佳选择。除抵押权人外,受让人的利益同样不容忽视。代为清偿制度已为我国《物权法》第191条所承认,该条赋予受让人清偿抵押权人债权从而消灭抵押权的权利,在抵押物价值高于担保债权额时具有适用空间。但在抵押物价值低于或等于担保债权额时,代为清偿制度无适用空间,需要在代价清偿和涤除权中做出选择。代价清偿因其主动权掌握在抵押权人手中而在实践中应用很少,涤除制度刚好弥补了这点不足,但涤除制度因为对抵押权人造成过重的负担也屡遭垢病,唯修正后的《日本民法典》通过抵押权消灭请求权对涤除制度进行了完善,一方面保留了涤除制度所具有的主动权掌握在受让人手中的优势,另一方面废除了可能会对抵押权人造成影响的增价拍卖制度和增担保请求权,我国未来立法应予借鉴。综上,在承认抵押物可以自由转让的基础上,“追及力+代为清偿+抵押权消灭请求权”的制度搭配,既可以促进物的流转,又能有效保护各方当事人的利益,我国未来立法宜采这种观点。
[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.
【学位授予单位】：南京师范大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.2
本文编号：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.
【学位授予单位】：南京师范大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.2
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