论典当合同中的绝当及违约责任

On Dead Pawnage Theory and Responsibility for Breach of Pawn Contract

绝当是典当合同中特有法律制度,构成绝当需同时具备行为和期限两方面的要件。绝当产生当物所有权移转和典当合同权利义务消灭的后果,具有独立性、法定性和避险性的特征。绝当后的违约责任及其承担方式存在较大争议。绝当不构成对典当合同的违约。绝当后不履行附随义务可能产生违约责任,应采取参照银行同期逾期贷款利率来支付违约金的形式承担违约责任。

The dead pawnage is unique legal system of pawn contract, which consists of behavior element and period element. As a consequence of dead pawnage, the ownership of pawnage would be exchanged and the rights and obligations of pawn contract would be eliminated. Independence, legality and haven is the characteristic of dead pawnage system. The liability for breach of contract and its way are controversial. Default would not come if there is only dead pawnage, but it would come if the subject of duty has not met his collateral obligation. The liability for breach of contract should be taken as penalty to refer to the same period bank loans overdue interest rates.