论抵押物转让时抵押权损害风险之认定

Criteria for Determining the Risk of Damage to the Mortgage in the Transfer of the Collateral

《民法典》第406条第2款中“可能损害抵押权”的抽象表述致使其认定标准不明,存在授权式法律漏洞。既往之司法裁判对其认定主要存在三种标准:转让行为本身有损抵押权、转让行为违反禁止让与特约、转让抵押财产未通知抵押权人。但在解释论层面均存在无法消弭的解释障碍。合理之认定方式在于,构造出抵押权的行使与抵押权受偿范围的基本框架,对可能损害抵押权这一要件进行要素化解构,提取抵押权实现成本与担保权益范围的比例性、抵押权追及力的限度、抵押权的受偿范围等弹性化的评价要素。抵押权损害风险的认定应自两个层次展开:一是抵押权的行使障碍,表现为抵押权追及力消灭与抵押权追及力受阻;二是抵押权的受偿范围减损,表现为抵押财产价值严重减损以及抵押财产以无偿或不合理低价的方式转让。

expression of“the possibility of damage to the mortgage”in Article 406(2)of the Civil Code makes the criteria for its determination unclear,so that there are authorized legal loopholes.In the past,there were three standards for identifying this issue:the act of transfer itself is detrimental to the mortgage right,the act of transfer violates the agreement prohibiting the transfer of the mortgaged property,and the transfer of the mortgaged property is not notified to the mortgagee,but there are some barriers of interpretation that cannot be eliminated in the interpretation process.The reasonable path lies in constructing the basic explanatory framework of the exercise of the mortgage right and the scope of the payment of the mortgage right,deconstructing the element of possible impairment of the mortgage right by extracting flexible evaluation elements such as the proportionality of the cost of realizing the mortgage right to the security interest,the limit of the recourse of the mortgage right,and the scope of the payment of the mortgage right.Thus,the risk of impairment of mortgage should be determined from two levels:firstly,the obstacles of the exercise of mortgage,which is manifested by the extinction of the recourse of mortgage and the obstruction of the recourse of mortgage;secondly,the impairment of the scope of payment of mortgage,which is manifested by the serious impairment of the value of mortgaged property and the transfer of mortgaged property in a gratuitous or unreasonably low price.