债权人撤销权对债务人为他人提供担保的适用路径

Route of Application of A Creditor's Avoidance Right to A Debtor's Provision of Security for Another Person

《民法典》第539条虽将债务人为他人提供担保置于可撤销的有偿行为中,但其文义范围囊括了与规范目的不符的无偿担保,以致学界对债权人如何撤销债务人无偿提供担保存有争议,从而形成统一适用说和区分适用说。统一适用的合理性在于债务人提供担保原则上属于有偿行为,因为债务人嗣后追偿的利益始终能作为其为他人提供担保的对价。尽管债务人能够通过放弃追偿权设定无偿担保,但由于债务人放弃追偿权可被直接评价为债务人放弃债权,所以刻意区分有偿担保与无偿担保对债权人撤销权的行使仅具有形式意义,而不存在功能价值。在具体分析债务人提供担保的诈害性时,统一适用带来的必然逻辑是提供担保的债务人须具有诈害意思,否则债权人的撤销权无法被援用。考虑到债务人提供担保的特殊性,严格遵循传统的无资力标准可能会适得其反,容易妨碍债权人撤销权的正当行使,所以裁判者在具体适用时应予以适当的缓和,但仍须把握债务人提供担保与无资力之间的因果关系。

Although article 539 of the Civil Code places the provision of security by the debtor for another person in the context of a remunerative act that can be avoided,its scope encompasses gratuitous security,which is inconsistent with the purpose of the norm,and this has led to a controversy in the academic community as to how a creditor can avoid the gratuitous provision of a security by the debtor,resulting in a uniform and a differentiated approach to the application of the law.The rationale for uniform application is that the provision of security by the debtor is in principle a remunerative act,since the benefit of the debtor's subsequent recovery is always available to the debtor as consideration for its provision of security to others.Although the debtor is able to create gratuitous security by waiving its right to recover,the deliberate distinction between reimbursable and gratuitous security has only formal,not functional,value for the exercise of the creditor's avoidance right,since a waiver of the debtor's right to recover can be directly evaluated as a waiver of the debtor's claim.In analysing the fraudulent nature of the debtor's provision of security,the inevitable logic resulting from the uniform application is that the debtor providing the security must have a fraudulence,otherwise the creditor's avoidance right cannot be invoked.Due to the particularity of the debtor's offering security,strictly following the traditional insolvent standard may backfire and easily hinder the legitimate exercise of the creditor's avoidance right.Therefore,the judge should make appropriate mitigation in specific application,but still must grasp the causal relationship between the debtor's offering security and insolvent.