债权准占有概念之反思

Reflection on the Concept of Quasi-Possession of Credit

尽管我国学说与司法实践很早就运用债权准占有概念来解决债务人因信赖债权文书而错误清偿的案型,但是其均忽略了债法规则中的债权准占有和物权法规则中的准占有是否相同这一关键问题。这也导致债权准占有概念的内涵和外延不清。如果严格按照物权法中占有的规则,占有具备事实管领力和自主占有之意思两个方面的内容,这两个方面也导致了占有的不同效力。债权作为无体物,不存在事实上的管领力,因此债权准占有无法类推占有在事实层面的效力。即使认可债权准占有这一概念,也只能类推占有作为自主占有之意思所导致的效力,例如先占或善意取得。但是,此种效力和错误清偿问题的解决无直接关联。更为妥当的做法是彻底放弃债权准占有概念,继而从债权文书的效力出发,从当事人合意和外观法理两个层面检讨债务人清偿的效力。

Although Chinese research and judicial practice have long applied the concept of quasi-possession of credit to analyze the cases where debtors rely on obligatory right documents and make erroneous repayment, the crucial issue of whether the quasi-possession in obligation law rules and in real right law rules is identical have been largely ignored. This has also resulted in a lack of clarity regarding the connotation and denotation of the concept of quasi-possession of credit. If we strictly follow the rules regarding possession in property law, possession comprises the intention of factual control and the intention of possession on one's own. These two aspects also result in different legal consequences of possession. As an incorporeal thing, credit does not possess factual control, thus it cannot be analogously equated with possession in terms of its validity of factual dimension. Even if the concept of quasi-possession of credit is recognized, it can only be analogously compared to the validity based on the intention of possession on one's own, such as occupancy or good-faith obtainment. However, this validity does not have a direct connection with the resolution of defective discharge. A more appropriate approach is to completely abandon the concept of quasi-possession of credit and instead to examine the validity of obligatory right documents, considering the parties' consent and appearance principle.