论所有权让与交易的担保化及其限度

Discussion on Transfer Transactions with Security Functions Becoming Secured Transactions and its Limits

具有担保功能的所有权让与交易泛化适用担保规则存在弊端。担保目的是担保合同的构造核心,有担保功能但无担保目的的交易不属于担保。在不同担保目的的限定下,债权人形式上取得的所有权可能属于仅具变价功能的纯粹担保权,也可能属于兼具变价与归属确认功能的担保性所有权,后者在法律效果上与典型担保有所区别。据此,可以将所有权让与交易类型化为补充型、混合型和创新型三类。补充型交易具有完全的担保功能,应与典型担保一体适用担保规则;混合型交易具有不完全担保的特点,在与典型担保进行规范统合的同时,应保留债权人通过归属清算等合同机制成为完全所有权人的可能;创新型交易虽有担保功能但不属于担保,法官应对此种规范的限缩解释负担实质论证义务。

There are disadvantages to the generalized application of security rules to title transfer transactions with a security function;the security purpose is at the core of the construction of a guarantee contract,and a transaction with a security function but without a security purpose is not a security.Subject to different security purposes,the formal acquisition of title by a creditor may be a pure security right with a mere realization function or it may constitute a security title with a combination of realization and attribution,which is different in legal effect from a typical security.Accordingly,title transfer transactions may be typified as complementary,hybrid and innovative.Complementary transactions were fully functional as security and should be subject to the same security rules as typical security;hybrid transactions,which were characterized by incomplete security,should be regulated as typical security while preserving the possibility for the creditor to become a full owner through contractual mechanisms,such as vesting and liquidation;and innovative transactions,which were functional as security but not security,and for which the judge had a substantive burden of proof in the restrictive interpretation of such a regulation.