我国提存制度的完善

Suggestion on Improvement of Escrow System

提存涉及提存人(债务人)、提存部门和债务人三方当事人,就提存人与债权人之间的关系而言,其为私法上的保管合同关系,并具有第三人利益合同关系的性质。债权人无正当理由拒绝受领,由债务内容的实现以债权人的受领或其他协助为必要、债务人依债务本旨提供履行、债权人无理由地拒绝受领三项元素构成。债权人下落不明可被分为六个类型,并非每个类型都是提存原因,需要逐项甄别,并且不宜笼而统之地说其“是否基于债权人的意思,在所不问”。债权人下落不明与债权人死亡未确定继承人、遗产管理人或者丧失行为能力未确定监护人两大类提存原因,相当于德国等国家和地区的民法上的受领不能之一种情形。中国法规定的提存原因,尚不包括“债权多次让与使得债务人不能履行或不能有把握地履行其债务”以及“债务人因善意对债权的准占有人为清偿的,固可发生清偿的效力,若稍有疑虞,当可提存其给付,以消灭其债务”等情形,有必要在我国民法典编纂中加以吸收。提存人可以凭法院生效的判决、裁定或提存之债已经清偿的公证证明取回提存物。提存物为动产时,依我国《物权法》第 23 条关于交付为所有权转移的生效要件的规定,提存物所有权转移的时间为提存部门占有该物之时。债务人于提存原因存在时却不予提存,至少违反了不真正义务,有的是违反真正义务。

The escrow involves three parties and the relationship between the depositor and the obligee is a kind of storage contract in civil law involving a third party's interest. The fact that the obligee refuses to accept the subject matter without justified reasons is composed of three elements, i. e. the necessity of the obligee's receipt or other assistance for the discharge of the debt, the performance of the obligor in accordance with the nature of the debt, the refusal of the obigee to accept the subject matter without reason. The circumstances that the whereabouts of the obligee are unknown can be divided into six types and not every type is a suitable reason for escrow, so they need to be distinguished item by item and it is not suitable to totally ignore the fact whether they are based on the mind of the obligee. The two types of major reasons that the whereabouts of the obligee are unknown and the obligee is deceased and the successor or administrator has not been determined or the obligee has lost civil capacity and a guardian has not been appointed are equivalent to the inability to accept the subject matter in other countries and regions such as Germany. The reasons for escrow in Chinese laws do not include circumstances that the obligor is unable to perform obligation or cannot perform obligation with certainty as the obligee has assigned its rights many times, and the obligor is uncertain of the effect of discharge of obligation if he performs the obligation to the quasi-possessor in good faith, however it is necessary to recognize them. The obligee may take back the subject matter in escrow by the judgment, ruling or notarized certificate that the obligation has been discharged. If the escrowed subject matter is movable property, according to Article 23 of the Property Law on that the delivery is the element for the effectiveness of transfer of ownership, the time of the transfer of the ownership of the escrowed subject matter is the time when the escrow institution occupies the subject matter. The obligor will be regarded as violating the non-real obligation at least and sometimes violating the real obligation if the obligor fails to escrow the subject matter when there is a reason to do so.