未登记不动产抵押合同中抵押人法律责任探究——基于相关规范之比较视角

Exploration of the Legal Liability of the Mortgagor in Unregistered Real Estate Mortgage Contracts--A Comparative Perspective Based on Relevant Norms

未登记不动产抵押合同中抵押人责任实质为违约责任。违约责任为无过错责任,“担保制度解释”第46条与《民法典》第593条之规定相冲突。若认定抵押人应承担补充责任,则意味抵押人通过违约取得了先诉抗辩权,较之抵押权有效设立状态下的责任反而有所减轻,侵害了守约方之权益;若直接认定抵押人承担连带责任又无法律规定及当事人约定之依据。在不突破现有违约规则,又避免抵押人仅承担补充责任对债权人之损害,可考虑基于违约补救规则,以司法解释或者指导案例明确债权人可请求抵押人在抵押物价值范围内承担连带担保责任予以补救。

The mortgagor’s liability in unregistered real estate mortgage contracts is essentially a breach of contract liability.The liability for breach of contract is non-fault liability,and Article 46 of the“Interpretation of the Guarantee System”conflicts with Article 593 of“The Civil Code”.If it is determined that the mortgagor should bear supplementary liability,it means that the mortgagor has obtained the right of first instance defense through breach of contract,which reduces the liability compared to the effective establishment of the mortgage,and infringes on the rights and interests of the complying party,if it is directly determined that the mortgagor bears joint and several liability without legal provisions or the basis agreed upon by the parties.Without breaking through existing breach rules and avoiding the mortgagor only bearing supplementary liability for damages to creditors,it may be considered to use judicial interpretations or guidance cases based on breach remedy rules to clarify that creditors can request the mortgagor to assume joint and several guarantee liability within the value range of the collateral for remedy.