论物保与人保并存纠纷中债权实现之顺位——以近五年来类案实证研究为基础

On the Realization Priority of Creditors’ Rights in the Mixed Disputes of Material Guarantee and Personal Guarantee ——Based on Empirical Study of Similar Cases in Recent Five Years

在物保与人保并存纠纷中,当事人之间约定不明、约定歧义较为凸显,类案不同判现象频发。对近五年类案进行实证研究,探寻合理解释当事人约定的路径,统一纷乱的裁判尺度。物保绝对优先理念符合公平正义的普遍期待,尽管《物权法》第176条融入了意思自治的衡平要素,但对当事人约定的解释应以有利于保证人为原则。关于保证人是否放弃物保优先抗辩权,须综合考量案件事实、约定条款、提示说明义务等因素,全面公正地加以裁断。应当明确的是,保证人放弃物保优先抗辩权,并不能赋予债权人实现担保顺位的选择权,保证人以承担并行连带责任为限。

In a dispute over the co-existence of material guarantee and personal guarantee, the agreement between the parties is unclear and the ambiguity of the agreement is relatively prominent, as well as the different judgments in such cases occur frequently. It is necessary to carry out empirical research on the cases in the past five years, to explore the path to reasonably interpret the agreement of parties and to unify judgment scale of chaos. The concept of top priority of material guarantee meets with the common expectation of fairness and justice. Although article 176 of the Property Law integrates the equitable elements of autonomy of will, the agreement between parties should be interpreted on the priority of the guarantor. Regarding whether the guarantor gives up the priority right of defense, it is necessary to consider the facts of the case, the terms of the agreement, the obligation of states and other factors to arbitrate in a fully fair manner. It should be clear that the creditor cannot get the option to realize the guarantee in sequence if the guarantor waives the right of priority defense, and the guarantor is limited to undertake the concurrent joint liabilities.