定金定性与所有权归属的理论批判

Critical Theory of Characterization and Ownership of Deposit

受古罗马法所有契约均为要物性的影响,当时的定金契约之要物性具有合理性。然而,诺成性已成为当今契约的基本属性,定金契约的要物性便缺乏存在的理论基础。实践中更无法解决在约定分期交付定金时一方仅为部分交付行为之定金契约的效力问题,且因要物性的要求使得定金契约效力的决定权在于交付定金方是否交付定金,而无法完全实现受定金方的担保之目的。定金的本质为一般等价物,物之属性决定定金担保为物权担保。定金之交付与质权下质物之交付类似,既然质物交付后的所有权不归属于质权人,定金交付后的所有权也不应当归属于受定金方而仍应当归属于交付定金方。如此,在受定金方应当双倍返还定金而出现破产情形时,交付定金方就能依据物之取回权取回所交付定金,而定金罚则下的返还部分应与一般债权同列,避免定金成为受定金方的单方担保。

Affected by the fact that all contracts are practice ones, the deposit contracts are reasonable as practice in ancient Roman. Therefore, the practice deposit contracts lack theoretical basis of existence when the consensus has become the essential attribute of today＇s contract. The difficulties in practice are that it is hard to determine the validity of the contracts at partial delivery under agreed installment and cannot achieve the purpose of deposit guarantee because the right belongs to the deliverer in deciding the validity of deposit contracts. The object attribute of the deposit as the general equivalent determines the fact that deposit guarantee is the security of property right. The delivery of the deposit is similar to the delivery of the pledged property. The ownership of the deposit should not be attributed to the recipient after delivering and should remain subject to the deliverer since the ownership of the pledge after delivering is not attributable to the pledgee. So, the deliverer can retrieve the delivered deposit based on the recall right in the case of bankruptcy of the recipient as double return. The part of the deposit under the penalties should be the same with the general creditors to prevent the the recipient. deposit from becoming the unilateral guarantee of the recipient.