抵销预期的发现及其价值——以保证金的破产抵销为线索

The Discovery of Set-off Expectation and Its Value

忽视了当事人的抵销预期,无法妥善解决保证金的破产抵销问题。保证金权益具有不确定性,权益数额不确定,权益是否发生也不确定,保证金给出人可以基于其抵销预期主张破产抵销,抵销效果在待抵销权益确定后发生。保证金与所担保债务具有发生上的牵连性,作为债务人的保证金给出人的抵销预期不受债权让与影响,民法典第549条第2项规定的“同一合同”应基于抵销预期予以解释。为保障债务人抵销预期的同一合同内抵销,与传统大陆法系中司法抵销范畴下的同一合同内抵销不同。我国无需在破产法中区分独立抵销和同一合同内抵销。在以封金、专户方式设立保证金担保或者保证金收受人有设立保证金专户的法定义务时,保证金权益归属于给出人对保证金协议外的第三人有约束力,保证金给出人的权利为取回权或共益债权,保证金给出人的抵销预期对第三人有约束力,无需考虑破产抵销的偏颇清偿问题。解决保证金破产抵销问题的过程,也是发现抵销预期之价值的过程。

Problems relating to deposit bankruptcy set-off can’t be properly solved if the set-off expectations of the parties are ignored. The right to deposit is uncertain on the amount and the occurrence of the right. The giver of deposit may exercise set-off right in bankruptcy proceedings based on his expectation of set-off, and the effect of set-off occurs when the right to deposit becomes certain. The relationship between deposit and its guaranteed debt could be described as genetic synallagma. For the giver of deposit, his expectation of set-off is not affected by the assignment of creditor’s right to guaranteed debt. The “same contract” stipulated in Article 549(2) of the Chinese Civil Code should be interpreted on the basis of expectation of set-off. “The same contract set-off” aimed at protecting the debtor’s expectation of set-off is different from that within the scope of judicial set-off in the traditional civil law system. It is not necessary to differentiate between “independent set-off” and “the same contract set-off” under the Chinese Bankruptcy Law. When the deposit guarantee is established in the form of sealed deposit and special account, or the deposit recipient has the legal obligation to establish a special deposit account, the giver’s right to deposit binds the third party outside the deposit agreement, thus is the right of withdrawal or common benefit right. For such set-off, there is no need to consider the issue of bankruptcy preference. The process of solving the problems relating to deposit bankruptcy set-off is also the process of exploring the value of expectation of set-off.