以民事司法查封财产设定抵押的效力分析

Analysis on the Effectiveness of the Mortgage Established on Sealed Properties in Civil Enforcement

虽然《担保法》《物权法》以及《民法典》明确规定不得以依法被查封的财产设定抵押,但不能据此认定其属于禁止性规定,从而将违反该规定而设定抵押权的行为一律归为无效。查封虽在公法上具有绝对效力,但就其对债务人的效力而言,尤其是在最高人民法院于2004年制定《查封规定》之后,已经由绝对效力转为相对效力。结合《民法典担保制度解释》第37条第2款规定来看,若查封已经充分公示,债务人以查封物设定的抵押权仅是相对无效,不得对抗申请执行人(包括轮候查封的申请执行人)以及其后参与到执行程序中的债权人,但对于其他债权人而言仍是有效的。如果查封的公示效应不达,则允许成立善意取得,就查封物取得抵押权的债权人有权对抗前述主体。

Although it is clearly stipulated that sealed properties cannot be mortgaged according to Guarantee Law,Property Law and Civil Code of China, it cannot be recognized as the prohibitive provision and the mortgage cannot be treated as invalid. Although the sealing in enforcement has absolute effect in public law, its effect on debtors has changed from absolute effect to relative effect since the Supreme People’s Court enacted the judicial interpretation related to the sealing in civil enforcement in 2004. Based on the second paragraph of Article 37 of Judicial Interpretation of Guarantee System of the Civil Code, if the sealing has been sufficiently announced, the mortgage established on sealed properties shall not counteract the person applying for enforcement, including the persons applying for sequential sealing and the creditors applying for participating in the distribution of properties. The mortgage is still valid among other creditors. And meanwhile, if the sealing is not sufficiently announced, the creditor applying for enforcement shall not counteract a third person in good will and accordingly the mortgagee can counteract all the persons mentioned above.