摘要:
随着金融机制改革逐步推进,以信用为基础的担保交易呈现出爆发式增长.此背景下,作为非典型担保的动产让与担保异军突起,应用广泛.时至今日,学界对动产让与担保制度已作较为充分的研究,但其中的三个通说观点值得商榷.第一,"动产让与担保制度不可成文化"之通说依据不足,动产让与担保应予成文化.该制度之"让与"并非虚伪表示行为,而系当事人内心真意之表彰;该制度并非违背"流押禁止"之规,而是与其并行不悖;该制度并非与担保物权体系相抵触,而是与其相兼容;该制度并非无比较法上先例,而是有迹可循.第二,"动产让与担保制度采"所有权构造""之通说依据不足,动产让与担保应采"担保权构造".该制度并非与交换价值"绝缘",而是具有鲜明的价值权性;该制度的公示手段并非是占有改定,而是声明登记;该制度设计时并非仅考虑债权人利益,而是应兼顾好各方利益.第三,"动产让与担保权实现采处分清算"之通说依据不足,动产让与担保权实现时应将当事人意愿置于优位,以约定优先;无约定时,应采归属清算方式.%With the gradual promotion of finance mechanism reform, secured transactions show explosive growth. Under this background, movable property transfer Guarantee as atypical guarantee suddenly comes into force and is widely used. Now, the academic circles have already given full research to the movable property transfer guarantee, but its three statements are worthy of discussion. Firstly, the statement of "movable property transfer guarantee system can not form text" has no sufficient basis; it can form text. The "transfer" in this system is not a false representation behavior, but it is the heartfelt recognition of the litigant; this system doesn't violate the rule of "mobile mortgage prohibition"but goes along with it; this system doesn't contradict the guarantee property system, but is compatible with it; this system doesn't have no example in comparative law, but has tracks to follow. Secondly, the statement of "movable property transfer guarantee system using" ownership right structure" "has no sufficient basis; it should use "guarantee right structure. This system is not "isolated" with exchange value, but it has distinctive value right; the publicity means of this system is not the change of possession, but it is declaration registration; the design of this system doesn't only pay attention to the interests of the creditors, but it takes into account the interests of all parties. Thirdly, the statement of "the realization of movable property transfer guarantee right uses punishment liquidation" has no sufficient basis, but it should put the will of the parties at the priority position taking the agreement at the first place; if there is no agreement, it should use the method of ownership liquidation.