担保制度司法解释的制度创新与难点释疑

On the Judicial Interpretation of Secured Transaction Law

《最高人民法院关于适用<中华人民共和国民法典>有关担保制度的解释》尽其所能地明确、细化担保的规则,补充《民法典》欠缺的某些规则。增设反担保人的责任范围不因担保合同无效而缩减的规则,看似不合逻辑实则确有道理。约定的担保责任范围超出主债务的范围,可被允许,只要不准予担保人就超出部分向主债务人追偿就足够了,司法解释却反对之,需要再思。担保人知晓新贷与否不宜作为其是否就新贷承担担保责任的原因,只有其同意方可负责,司法解释在这点上亦应反思。担保合同关于抵押物转让须经抵押权人同意的约定经过登记,可发生对抗第三人的效力,这是司法解释较《民法典》第406条第1款中段的规定合理之处,但仍难扭转有利于金融机构的倾向。抵押权的效力不及于其设立之后续建、新建的部分,符合法理。抵押权担保的债权罹于时效后抵押人有权对抗抵押权人关于行使抵押权的主张,这虽符合法理,但时间一长便滞碍抵押物的流转,有时还耽误买受抵押物之人完成过户登记,应提出解决之道。以现有的应收账款出质,第三债务人向质权人确认应收账款的真实性后,无权以应收账款不存在或已经消灭为由对抗质权人实行质权,该创设符合法理。

The judicial interpretation of the Supreme People’s Court on the application of guarantee in the Civil Code does its best to clarify and refine the rules of guarantee,and to supplement some rules lacking in the Civil Code.It seems illogical to add the rule that the scope of liability of the counter guarantor should not be reduced due to the invalidity of the guarantee contract,but it is reasonable.If the agreed scope of guarantee liability is beyond the scope of the principal debt,it can be allowed,as long as the guarantor is not allowed to recover the excess from the principal debtor.However,the judicial interpretation holds the opposite view,which needs to be reconsidered.Whether the guarantor knows the new loan should not be taken as the reason for the guarantor to undertake the guarantee responsibility for the new loan,and only with his consent he can be responsible.Judicial interpretation should also reflect on this point.The agreement that the transfer of the mortgaged property must be agreed by the mortgagee in the security contract can be effective against the third party after registration,which is more reasonable than the middle section of the first paragraph of article 406 of the Civil Code in the judicial interpretation,but it is still difficult to change the tendency that the rule is beneficial to financial institutions.The effect of mortgage is not as good as the part that is renewed or newly built after its establishment,which is in line with the legal principle.The mortgagor has the right to fight against the mortgagee’s claim to exercise the mortgage right after the time limit of the creditor’s right secured by the mortgage.Although this is in line with the legal principle,it will hinder the circulation of the mortgaged property and even affect the transfer registration.After the third debtor confirms the authenticity of the accounts receivable to the pledgee,he has no right to pledge against the pledgee on the ground that the accounts receivable do not exist or have been eliminated.The establishment is in line with the balance of interests.