抵押物价值恢复请求权的体系化展开——兼及抵押权保全的立法论

A Systematical Analysis of the Right to Request the Recovery of the Value of the Mortgaged Property

抵押物价值恢复请求权的目的是在抵押物价值已经减少时,为抵押权人提供救济。主要包括恢复原状、增担保和提前清偿三种方式,其性质宜界定为抵押合同的法定债权。其具体效力应区分债务人抵押与第三人抵押。在第三人抵押情形,除非债权人和债务人约定由债务人负责提供抵押或债务人应确保抵押物价值恒定,或者债务人故意侵害抵押物,债务人不承担价值恢复和提前清偿的义务。增担保权和提前清偿请求权的行使不应损害抵押人的其他债权人。在债务人抵押情形,提前清偿的范围宜界定为全部债权,而不是与抵押物价值减少数额相应的债权;在第三人抵押情形,提前清偿仅限于提前行使抵押权。价值恢复请求权与抵押权人的物权请求权、侵权请求权和物上代位权可能发生竞合或聚合。《物权法》应区分抵押物价值可能减少和已经减少的情形,作不同的抵押权保全制度设计:前者应确认抵押权人的保全处分权和保全费用的优先受偿地位;后者应关注债务人抵押与第三人抵押的差异。

The right to request the recovery of the value of the mortgaged property applies to the ca- ses where the value of the mortgaged property is reduced. It includes restoring the property to its original state, providing more security and paying off the debts in advance. Its nature can be properly determined as the legal creditor＇s right in contract. A distinction should be made between mortgage by the obligor and mortgage by the third party in terms of its specific effects. In the case of mortgage by a third party, the obligor does not have the obligations of recovering the value and paying off the debts in advance, un- less the obligee and the obligor agree that the obligor is obligated to provide a security or the obligor should guarantee the constant value of the mortgaged property, or the obligor infringe the mortgaged prop- erty intentionally. Increasing the security and paying off the debts should not harm the interests of other creditors of the mortgagor. The range of the debts paid off in advance is advisably defined as the credi- tor＇ s rights as a whole, not the creditor＇ s fight corresponding to the reduced value of the mortgaged property. The fight to request the recovery of the value of the mortgaged property, the rights of the mort- gagee to request property and make claims for tortious acts and his right of subrogation may concur or o- verlap. The Property Law should make a distinction between the situation in which the value of the mort- gaged property may decrease and that in which the value of the mortgaged property has decreased, and make systematic designs. As to the former, the preservation of the creditor and his priority in receiving preservation fee should be set forth; as to the latter, the distinction between the mortgage by the obligor and that by a third party should be addressed.