禁止流质约款之合理性反思

Pondering on the Reasonableness of Prohibition of the Article on Collateral's Transfer

流质约款是指民商主体当事人之间在有关物的担保合同中约定的,于债务人到期未能清偿债务时即由担保权人取得所约定的担保物的所有权的条款。流质约款为国内外多数担保立法明确禁止,亦为我国民商法学界所否定。但是反观民商法理论上有关禁止流质约款的理由,却存在着诸多让人难以信服和与现实生活的悖谬之处,其立法规定也缺乏有力根据。我国的物权立法对流质约款应当予以认可。

The article on collateral＇ s transfer refers to the clause engaged by the civil subjects in the contract of suretyship, which the secured creditor will attain the ownership of the engaged collateral when the debtor can＇ t pay off the due debt. The article is prohibited definitely by the security legislation in most countries in the world, wherein it is also denied by civil law academic circles in China. When reviewing the reasons on prohibiting the article on collateral＇s transfer incivil and commercial theories, we can find that there are many unconvincing contradiction with the reality and the legislative rules are also lack of the powerful evidences. A ctually, having the same point and character with the pledge constitution and the transferring security, the article conforms to the principle of equality and voluntariness and the character of market economy＇s diversification. Subsequently, the author proposes five detailed revising plans （abating, revising, co-stipulating, discriminatory- stipulating, special-stipulating） for legislative choice in order to stipulate and approve the article.