“买卖型担保”法效果的解释与证成

Interpretation and proof of the legal effect of “A guarantee based on a sales contract”

"买卖型担保"是中小企业融资的常见手段,但目前学理界和实务界对此存在多种不同的解释或裁判路径,适用上产生较大分歧。真正的问题在于,一方面出借人与借款人约定到期不能清偿借款移转标的物所有权,不利于保护弱势债务人利益,导致禁止流质、流押的适用;另一方面由于规范民间借贷监管的需要,在价值判断上认定通谋虚伪意思表示而无效。由此,现有解释路径存在超出"买卖型担保"涵射的范围、参照担保物权解释等两大误区。就法律效果而言,"买卖型担保"具有独立性,性质上不属于担保物权,可以在内部证成为仅属于诺成性的担保性质约定,从属于基础法律关系借款债权,区别于通谋虚伪意思表示、让与担保和以物抵债;在外部证成为可以实现与担保物权相类似的对抗效力和优先受偿的"担保"效果,具体经过预告登记保全借款债权顺位、完成所有权移转本登记实现优先受偿、实行处分型清算实施借贷监管等三方面得以实现。

"A guarantee based on a sales contract" is a common means of financing for small and mediumsized enterprises. However, there are many different ways of judgment or explanation in the academic circle and judicial practice at present, resulting in great differences in application. The essence of the problem is,on the one hand, the agreement between the lender and the borrower that the borrower cannot repay the loan and transfer the ownership of the subject matter at maturity is not conducive to the protection of the interests of vulnerable debtors, resulting in the application of the ban. On the other hand, due to the need to regulate the supervision of private lending, the value judgment is that conspiring to express false intention is invalid. There are two misunderstandings in the existing interpretation path, which are beyond the range of the typical characteristics of "A guarantee based on a sales contract", and taking the effect of real right guarantee as the reference and basis of interpretation.As a result, there are two misunderstandings in the existing interpretation path, which are beyond the scope of "sale guarantee" and referring to the interpretation of real rights for security. As far as legal effect is concerned, the "buying and selling guarantee" is independent and does not belong to the real right of guarantee in nature. It can become a guarantee agreement that only belongs to the nature of promiscuity in the internal certificate. It is subordinate to the loan creditor’s right of basic legal relationship, and is different from the common conspiracy of false expression of intention, transfer of guarantee and payment of debts in kind. In the external certificate, it can achieve the antagonistic effect similar to the security right and the "guarantee" effect of priority compensation, which can be realized in three aspects, namely, the preservation of the creditor’s right sequence of loan through advance notice registration, the realization of priority compensation through the registration of ownership transfer, and the implementation of disposal liquidation and the implementation of loan supervision.