民法典担保权编的立法模式研究

A Study on Legislation Mode of Secured Property Rights of Civil Code

法律界一般认为,物的担保属于担保物权,但学界仍有争议。从物权基本构造观察,物的担保并无支配性;从物权的客体、效力和救济途径分析,其与物权有诸多不适;将权利纳入物权客体,更使物权理论难以自洽。现行担保制度一分为二,增加了法律适用冲突。担保实践中"重物保,轻人保"的现象普遍,非典型担保难以得到法律的肯认,客观上阻滞了我国信用经济的发展。担保权有独立成编的理论基础和现实要求,且域外担保法改革确有先例,国际贸易不同法域的担保规则也有融合趋势。担保权编与民法典各分编平行,符合法典编纂的形式逻辑。担保权编按照财产利益类型加以构造,有助于民法典财产权总则的抽象构建,更有利于激活社会主义市场经济条件下的各类担保交易。

According to the traditional civil law theory,the secured property rights were set up above the material things.But the attribute of the secured property rights has been controversial in the literature,and from the basic structure of real right,the secured property rights do not have the control over object things. From the perspective of the object,effectiveness and remedy of civil rights,there are many discomforts between the secured property rights and real rights.If the rights are included in the object of the real rights,it will be difficult for the theory of real rights to achieve its self-consistency.The current guarantee system is divided into two parts,which increases the conflict of law application.Legal practice reflected by theoretical problems,for example,“attaching importance to property insurance while neglecting personal insurance”,“the atypical secured interest adopted by the parties is difficult to obtain legal protection”,hinders the development of the credit economy in our country.The theoretical basis and practical requirements propel us to create an independent Secured Property Right chapter in Civil Code. Moreover,there are some precedents in the reform of the extraterritorial law,and there is also a trend of convergence of security rules among different jurisdictions of international trade.That the security right is compiled in parallel with other rights chapter in Civil Code is in conformity with the formal logic of the compilation of Civil Code.The structure of secured property right,which is constructed by the type of property interests,is helpful to abstract construction of the general rules of property rights of Civil Code,and is more conducive to activating all kinds of secured transactions in socialist market economy.