对流质契约禁止性规定的理论反思

The Theoretical Reflection on the Prohibitive Provisions of Fluidity Contract

当今世界许多国家尤其是大陆法系国家的立法对流质契约采取的是禁止的态度,我国亦不例外,但是现代各国的许多学者对此已经产生了质疑。流质契约具有维护私法自治、提高市场经济效率和实现各种制度协调发展的优势,其存在的缺陷完全可以用现存的法律制度来调整,没有必要事先在法律中做出禁止性规定。流质契约的禁止并不能如初地维护债务人的利益,有时甚至还会因为担保物的贬值或市场竞争的约束机制而损害债务人的利益,所以流质契约的解禁已经成为了一个非常现实的问题。

In today’s world,many countries especially civil law countries including our country,hold a forbidden attitude on the fluidity contract in their legislation and theory. However,many countries have had the question about it. Fluidity contract have many advantages that it can maintain the autonomy of private law,improve the efficiency of the market economy and realize the harmonious development of all the systems,then its defects can be adjusted by the existing legal system,there isno need to make provisions in the law. Fluidity contract prohibition would not like to maintain the interests of the debtor,sometimes it even will damage the interests of the debtor as the collateral devaluation or the constraint mechanism of market competition. In the word,lifting a ban on the fluidity contract has become a very real problem.