论债权之罹于时效与担保物权之存续

The Security Interest in the Secured Creditor after the Statute of Limitations

关于担保物权在被担保的债权罹于诉讼时效后的法律地位,有不同的立法例。基于诉讼时效的立法宗旨,以及我国担保物权以担保债权实现为功能,在我国,应确立如下改革方向:债权罹于诉讼时效时,担保该债权的担保物权应仍然存续,且其效力不受任何影响;关于质权和留置权,应明确规定,被担保的债权消灭之前,质权或留置权不消灭;关于抵押权,应以除斥期间限制其存续期间。

There are different legislations about the security interest in the secured creditor in legal status after the statute of limitations. This article, based on the legislative purpose of the statute of limitations, as well as our security interest to the secured creditor is implemented as a function, in our country, the direction of reform should be established as follows ： when the creditors suffer from the statue of limitations, the security interest which secures creditors should be still alive, and its effectiveness is not affected; when it comes to pledge and lien, it should be clearly specified that pledge and lien will not eliminate before the secured creditor is not eliminated; as to mortgage, scheduled period to limit its duration should be used.