民法典动产质权设立与存续的实务难题及破解之道

The Practical Difficulties and Solutions to the Rules of the Establishment and Existence of Movables Pledge in the Civil Code

交付是动产质权的设立要件,但本身并不影响动产质押合同的效力;在动产质物未交付情形下,质押合同仍能实现一定担保功能,其具有双重债法效力,权利人既有权主张出质人承担违约责任,也有权请求出质人在质物价值范围内承担"特定财产"上的担保责任。在动产质权设立问题上,一方面,宜认定当事人不能通过占有改定的方式设立质权;另一方面,当事人约定共同占有质物时,如果质押财产特定化且不受出质人独力控制,宜认定当事人之间约定通过非典型的交付方式完成质物的交付,质权仍有可能被认定已经设立。在动产质权存续问题上,质权人提前返还质物的,质权并不当然消灭,但不得对抗善意第三人;质权人非因自身原因丧失对质物占有的,在无法请求返还质物的情形出现前,质权仍然存续。

Delivery is an essential requirement for the establishment of pledge on movables,but it does not affect the validity of the pledge contact for movables.In the case of the pledged movables not being delivered,the contract can still realize a certain guarantee function,which has dual validities of obligation law.Because the pledgee not only has the right to claim that the pledgor shall be liable for breach of the contract,but also has the right to request the pledgor to bear the guarantee liability of"specific property"within the value of it.On the issue of the establishment of pledge on movables,on the one hand,the parties cannot establish pledge by means of constitutum possessorium;on the other hand,when the parties agree to jointly possess the pledged res,if it is specific and not under the sole control of the pledgor,it should be determined that the parties have agreed to complete through an atypical delivery method to deliver it,and the pledge may still be deemed to have been established.On the issue of the existence of the movables pledge,if the pledgee returns the pledged res in advance,pledge is certainly not extinguished,but not against bona fide third parties;if the pledgee loses possession of the pledged res for reasons other than his own,pledge still exists until the situation arises that he cannot request the return of it.