买卖型担保的法律效力研

The Study on the Legal Force of Sale Guarantee

买卖型担保,即以签订买卖合同的方式担保借款债权的实现,这在债权融资市场已算不得什么领异标新的稀罕事了。但法律发展的脚步往往跟不上时代变化的节奏,现行有效的法律和司法解释均没有对买卖型担保的效力作出规定。根据其属性和功能,应当认定,买卖型担保合同的本质是一份担保合同,但由于其违反物权种类法定原则,且不满足物权变动的公示要件而确定、终局地不发生物权效力。作为一份合同,若其不具有合同法上的效力瑕疵,则该合同具有完全的债权效力。债权人根据买卖型担保合同所享有的是一种意定担保债权,其有权于债务人不履行到期债务时,请求担保人履行合同义务,移转担保财产的所有权,同时须经清算以平衡债权人与债务人之间的权利义务关系,这应当算作对流押条款无效的缓和。

The sale guarantee,that is to guarantee the realization of the loan creditor’s rights in the form of signing the sale contract,is nothing new at present.However,the development of law often fails to keep up with the changes of the times.The currently effective laws and judicial interpretations do not regulate the effectiveness of the sale guarantee.According to its nature and function,it should be recognized that the essence of the sale guarantee contract is a guarantee contract.However,it violates the principle of numerus clausus,so it does not have the effect of real right,nor is it bound by the mortgage of goods in flow.As a contract,if it does not have defects in the validity of contract law,the contract has full effect of obligation.As a kind of consensual secured creditor’s rights,the creditor has the right to request the guarantor to perform the security contract and transfer the ownership of the secured property when the debtor fails to perform the due debts.Meanwhile,it must be liquidated to balance the rights and obligations between the creditor and the debtor,which can be regarded as the alleviation of invalid mortgage of goods in flow.