关于债权质的思考

Reflections about the Pledge of Obligatory Rights

将来债权可以出质,但限于有极大可能性产生的债权,诸如附始期的债权、附停止条件的债权、日后仅须有某种情事发生即可由已经存在的基础法律关系上发生的债权以及“纯粹的将来债权”。以公路、桥涵的收费权出质,不与质权的本质相抵触,但其不应属于应收账款质权,因为公路、桥涵的收费权对应的义务人不特定,未遵循债的相对性,具有一定的对世性。债权质的实行大多由第三债务人直接向质权人为清偿,但也允许就入质债权拍卖或变卖,甚至于允许于质权实行之时就入质债权折价。出质的债权原则上不得抵销,但对于第三债务人而言,如于受质权设立的通知之前,已经取得了对于出质人的债权,该第三债务人的抵销权不应因出质人为其债权人设立质权而受妨碍。不但如此,第三债务人于受质权设立的通知时,或其后已届清偿期的,可以对质权人主张抵销。

Future obligatory rights can be pledged only when they have a high probability of occurrence, such as the obligatory rights with the beginning period, the obligatory rights with effective time condition, and the obligatory rights which can arise from the already existed basic legal relationship when certain events occur in the future, and "the pure future obligatory rights". The pledge of the toll right of highway or bridges and culverts does not conflict with the essence of the pledge right. However, they do not belong to the pledge right of accounts receivable, because those toll rights whose obligors are not specific don' t follow the relativity of debt but have certain exclusiveness. In most cases, the pledge of obligatory rights is executed through the third obligor 's direct settlement to pledgee. But the auction or the sale of the pledged obligatory rights is also allowed. Even the distressed exchange of the pledged obligatory rights is allowed when the pledge of obligatory rights is executed. In principle, the pledged obligatory rights can' t be set off. However, for the third debtor, if he has obtained the obligatory rights to the pledgor before he received the notice of the establishment of the pledge right, his right of set - off should not be hindered by the pledgor' s establishment of the pledge right for his creditor. In addition, the third debtor can claim to set off against the pledgee when he received the notice of the establishment of the pledge right, or when the term of payment is expired.