论流质契约的解禁

On Unchaining of Fluidity Contract

流质契约虽有可能造成担保设定人与担保权人利益失衡以及损害担保设定人之其他债权人的利益之弊端,但是,其也具有促使债务人及时偿还债务以及降低担保权实现的交易成本等优点。我国未来《物权法》应承认流质契约,这不仅是尊重当事人意思自治的需要,也是实现担保权价值取向统一的需要,还是排除创设新型担保权之障碍的需要。在未来《物权法》承认流质契约的同时,应当运用现行法的规定和创设新的合理方法处理好对担保设定人及担保设定人的其他债权人的利益保护问题。

Fluidity contract may cause the interest unbalance of persons who enact the surety and who own the hypothec, and at the same time, it also can blemish the interest of other creditors of persons who enact the surety. But it also has many virtues, such as spurring debtors to reimburse the debt and reducing the exchange cost about realizing the hypothec, and so on. Fluidity contract should be admitted in Chinese Tomorrow's 'Real Right Law', which not only respects the party's autonomy of intention, but also is in favor of unification of the value tropism. Meanwhile, we had better take order with the protecting problems of interest to the persons who enact the surety and other debtors of these persons by exerting the rules of existing law and creating new reasonable methods.