《民法典》视域下的买卖型担保合同探究

• 영문명: A Study of Trading-based Guarantee Contract under the Civil Code
• 발행기관: 원광대학교 법학연구소
• 저자명: 尹太顺 (Yin Tai shun) 韩 银 珠(韩 银 珠(Han Eun ju)
• 간행물 정보: 『원광법학』제36권 제4호, 271~282쪽, 전체 12쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2020.12.30

국문 초록

随着经济形势与金融政策的改变,出现了“买卖型担保合同”这一新的形式。但直接规制这种新型担保方式的法律规定只有《民间借贷规定》第二十四条的规定,没有明确规定买卖型担保合同的性质与效力,学界与实务界至今还未能形成统一的意见。但社会实践中存在庞杂的买卖型担保合同的实务与纠纷,须由统一的规范进行规制。《民法典》的担保物权体系作出了重大调整,承认了非典型担保合同的效力,将流质契约排除在禁止性规范之外无疑为买卖型担保合同留下了解释空间。《民法典》颁布前,虽然有过关于买卖型担保合同的讨论,也有主张应将让与担保等非典型担保方式入典,但并未能实现。因此在《民法典》的新规则视域下重新研究买卖型担保合同,界定其在现有法律框架下的定位和效力无疑是有意义的。 要认定买卖型担保合同的性质,须从理性当事人的意思表示出发研究其合意的基础。从理性商事主体的角度而言,将买卖型担保合同认定为买卖合意存在诸多不合理之处,其合同的内容也不符合正常买卖合同的一些特征。认定买卖型担保合同的性质为清偿合意,尽管在解释论上有其合理之处,但清偿制度还未入典,也无法满足解决实际问题的需求。认定买卖型担保合同的合意基础为担保合意,不仅体现了当事人的内心真意,也可与当前 非典型担保物权体系的立法现状和司法实践联系在一起,认为是最为合理的解释路径。对于买卖型担保合同的效力,则需要从买卖合同和担保行为两个角度研究其债权效力与物权效力。在肯定合同效力的前提下,物权效力则需要对实践中的诸多情形作出区分,具备公示条件的买卖型担保合同应作为非典型担保物权对待,准用《民法典》担保物权优先受偿规则,而未具备公示条件的买卖型担保合同则不予承认其物权效力,仅承认债权效力。

영문 초록

As the economic situation and financial policies change, a new form of guarantee—— “Trading-based Guarantee Contract” has emerged. However, the only legal provision that directly regulate this new type of guarantee is only the Article 24 from the regulations on private lending, issued by Supreme People s Court, which does not clearly stipulate the nature and effectiveness of the Trading-based Guarantee Contract. The academic and practical circles are still discussing related issues, and they have not yet been formed unified opinion. However, in social practice, there are numerous and complicated disputes over the Trading-based Guarantee Contract, which must be regulated by a unified theoretical viewpoint. The Civil Code has made major adjustments to the security rights system, acknowledging the effectiveness of atypical security contracts, and excluding fluidity contracts from the prohibitive regulations, undoubtedly leaving room for interpretation of sales-type security contracts. Although there had been discussions on the Trading-based Guarantee Contract before the promulgation of the Civil Code, some commentators suggested that atypical guarantee methods such as assignment guarantees should be included in the Code, but it have not been realized. After the promulgation of the Civil Code, it is undoubtedly meaningful to re-study the Trading-based Guarantee Contract under the scope of the new rules of the Civil Code, and it is undoubtedly meaningful to determine its positioning and effectiveness under the existing legal framework. It is necessary to study consensus basis from the expression of the rational parties to determine the nature of the Trading-based Guarantee Contract. From the perspective of a rational commercial subject, it is deemed that there are many unreasonable points in the agreement of the trading consensus, and the content of the contract does not conform to the other characteristics of the normal sales contract. The theory of settlement consensus has its rationality in the interpretation, though the settlement system has not been included in the Civil Code, cannot meet the needs of solving practical problems. To determine the consensus basis of the type of contract as the guarantee consensus, which is the most reasonable interpretation, not only reflects the true intentions of the parties, but also can be linked to the current legislation of atypical security right system and judicial practice. To confirm the effectiveness of the Trading-based Guarantee Contract, it is necessary to analysis the effect of obligation and real right from the two perspectives of the sales contract and the guarantee behavior. Under the premise of affirming the validity of the contract, the validity of real right needs to distinguish between many situations in practice. The Trading-based Guarantee Contract with publicity conditions should be treated as atypical security right, and the priority of compensation could on quasi-application of the provisions of security right from the Civil Code. Trading-based Guarantee Contract that do not meet the requirements for publicity should not recognize the validity of real right, but only recognize the vadility of the obligation right.

목차

Ⅰ.问题的提出

Ⅱ.买卖型担保合同的合意基础

Ⅲ. 买卖型担保合同的效力

Ⅳ. 结 语

키워드

Trading-based Guarantee Contract security right transferring guarantee numerus clausus the Civil Code 买 卖 型担 保合同,担 保物权 ,让 与 担 保,物权 法定,民法典