我国《民法典》上的“混合担保规则”解释论

The Interpretation of the Mixed Secured Interest Rule in the Civil Code of China

《民法典》第392条是有关混合担保规则的体系化规定。在理论和制度逻辑上,混合担保情形下的债权人如何行使其担保权益,除非当事人之间另有约定,法律没有理由干预债权人应当先行使哪个担保权益。对混合担保规则的解释在我国的理论和实务上一直存在争议。解释混合担保规则的基础是要构造混合担保规则的解释平台,以统一对混合担保的认识和制度要素。混合担保规则的核心问题为债权人如何实现债权的问题。以如何实现债权为中心,混合担保规则构造了债权人按照约定实现债权、自物担保物权实现在先和债权人自主决定实现债权的规则,此为具有中国特色的制度创新。以此为基础,混合担保规则区分债务人自己提供物的担保和第三人提供担保的情形,相应构造担保人承担补充责任和向债务人求偿的制度,或者以各担保人分别承担责任、向债务人求偿及担保人相互间的求偿的制度,以为缓和各担保人之间存在的事实上的利益冲突的重要工具。

Article 392 of the Civil Code is a systematic provision on mixed secured interest rule.In theory and institutional logic,unless otherwise agreed between the parties,there is no reason for law to interfere with which secured interest the creditor under the mixed secured interests should have in advance.The interpretation of the mixed secured interest rule has always been controversial in theory and practice in China.The basis for interpreting the mixed secured interest rule is to build the platform of interpreting the rule,and to unify the understanding and institutional elements of the rule.The core issue of the mixed secured interest rule will be how to realize the claim secured.The mixed secured interest rule sitting on the creditor’s realization of the claim constructs individually the rule for creditor to realize claim according to the agreement,the rule for creditor to realize the secured interest by the debtor and the rule for creditor to decide on its own to realize claim.This is an institutional innovation with Chinese characteristics.On this basis,the mixed secured interest rule distinguish between these cured interest by the debtor on its own and the case in which the third party offering secured property,and correspondingly with(1) the rules for guarantors’ additional liabilities to the creditor and claims only to the debtor,or(2) the rules for guarantors’ liabilities separately to the creditor and claims to the debtor as well as claims between the guarantors,of which important tools will be for mitigating the de facto conflict of interests between guarantors.