民法典编纂背景下让与担保入法问题研究:范畴、争议与价值衡量

Research on the Legislation of Security Transfer under the background of Civil Code Compilation: Category,Dispute,and Value Measurement

滥觞于罗马法和日耳曼法而经德日发展的现代让与担保目前尚无统一定义,但其具有较受认可的五项特征:具有附随性、标的以动产为主、是一种非典型担保、移转所有权、以不移转占有为常态。让与担保应否入法在我国争议较大:理论界存有肯定说和否定说;司法界亦保有三种不同立场。从让与担保入法的必要性看:我国社会交易实践尚不足以为其提供足够需求根基;现行法制框架已经为其提供弹性调整机制;域外相关实践表明其并非必须。从让与担保入法的可行性看:我国学界尚未对其形成最大理论共识;其不能与原有物权法制体系有效协调甚至会对原有体系造成冲击。因此,现阶段不具备让与担保入法的必要性与可行性,不应将其纳入正在编纂的民法典中。

The modern security transfer derives from Roman law and Germanic law and has been developed by German and Japan,but it doesn＇t have a uniform definition. However,five features of it have been acknowledged widely： it has the feature of subordination; most of its objects are movable property; it＇s a kind of atypical security; it transfers the ownership of the objects; it doesn＇t transfer the occupation of the objects generally. Whether the security transfer should be legislated has been argued strongly in China：affirmative attitude and negative attitude exist in theoretical cycles; judicial cycles also have three standpoints. From the view of the necessity of the legislation of security transfer： the social exchange practice of our country doesn＇t provide sufficient demand basis for it;the current legislation frame has provided elastic adjustment mechanism for it; the extraterritorial practices indicate it is not necessary.From the view of the feasibility of the legislation of security transfer： the academic cycles of our country don＇t form the maximal theory consensus of it; it can＇t harmonize with the intrinsic legal system of real right and it may even strike the intrinsic system. As a result,security transfer doesn＇t have the necessity and feasibility of legislation at present,and it shouldn＇t be stipulated in the civil code which is being compiled now.