资产收益权交易的法律构造——基于最高人民法院与高级人民法院41份裁判文书的分析

The Legal Formation of the Transaction of Proceeds on Asset:An Analysis based upon 41 Judgements in Supreme People’s Court and Provincial People’s High Courts

资产收益权是近年来出现且活跃于商业实践中的概念,但学界与商业界对其性质、权利内容等存在诸多误解。通过分析41起相关裁判可知,资产收益权看似是一种新型权利,但实际上属于债权。与一般债权的不同之处在于,资产收益权与底层资产挂钩,债权的履行期限始于底层资产转让之时,而债权数额一般是底层资产的转让价款。资产收益权这一概念被创设出来,旨在规避“底层资产禁止转让”的法律规范。资产收益权转让名为债权让与,实则是债权设立行为,受让人对于底层资产或其收益不具有排他效力。为克服该缺陷,实践中通行做法是在底层资产上设立抵押权。资产收益权转让、回购是实践中最常见的交易模式,依据穿透性裁判思维,其性质上属于借款合同。转让回购合同系脱法行为,其效力问题应视所规避的法律规范的效力层级予以判断。转让回购合同应适用借款合同的规范,但其属于金融借贷,不适用民间借贷的利率管制。

Proceeds from asset is a concept that has emerged in recent years and is commonly used in commercial field. Although proceeds from asset sounds like a new type of right, but its legal nature is creditor’s right. The difference from the general creditor’s rights is that proceeds from asset is linked to the underlying assets. The performance period of the creditor’s rights starts when the underlying assets are transferred, and the amount of the creditor’ s rights is generally the price of transferring the underlying assets. The reason why businessmen created the concept is to circumvent the prohibition on the transfer of underlying assets. Although the transfer of proceeds from asset is called the assignment of creditor’ s rights, it is actually an act of establishing creditor’ s rights and does not produce the legal effect of assignment. The transferee of proceeds from asset does not have exclusive effect on the underlying assets or their proceeds. Therefore, the common practice is to establish mortgage rights on the underlying assets.The transfer and repurchase of proceeds from asset is the most common transaction mode in practice. The contract is a loan contract in nature. The contract is a legal circumvention, and its validity should be judged according to the level of validity of the legal norm circumvented in specific cases. Although the contract should refer to the norms of loan contract, because it is a financial loan, the interest rate limit of private loan is not applicable.