| 摘要: |
| 《担保制度司法解释》第68条第1款明文认可让与担保。在动产让与担保中，担保人将动产所有权在形式上转移至债权人名下，用以担保债务履行，关于此类形式上的所有权之性质，存在“所有权构成说”与“担保权构成说”之争。在涉及强制执行和破产时，比较法上的“所有权构成说”未能将其逻辑贯彻到底。中国的规定更符合“担保权构成说”，债权人在形式上取得的所谓所有权实为担保物权。在强制执行过程中，动产让与担保的法律效果与是否完成权利变动公示和担保物权公示（登记）密切相关。对于已完成担保登记的动产让与担保，担保权人可以在执行程序中优先受偿。对于未登记的让与担保，未登记的担保权人无法对抗担保人的其他申请强制执行的债权人，但可在法院采取强制措施前完成登记，取得对抗效力；法院采取强制措施后，担保权人补办担保登记的行为属于《查扣冻规定》第24条第1款的“其他有碍执行的行为”，但在超级优先顺位登记的宽限期内完成登记的除外。动产让与担保的执行应参照动产抵押权的相关规则，担保权人负有清算义务。 |
| 关键词: 动产让与担保 强制执行 权利变动公示 担保登记 |
| DOI： |
| 分类号: |
| 基金项目: |
|
| Transfer of Ownership for Security Purposes in Civil Enforcement Proceedings |
|
Wang Lidong
|
|
|
| Abstract: |
| Art. 68, Para. 1 of the “Interpretation of the Security System under the Civil Code” explicitly recognizes the transfer of ownership for security purposes. In the context of a transfer of ownership for security purposes involving movable property, the guarantor formally transfers ownership of the movable property to the creditor to secure the performance of a debt. Regarding the nature of this formal ownership, there exists a debate between the “full ownership theory” and the “security interest theory”. In cases involving civil enforcement and bankruptcy, the “full ownership theory” in comparative law fails to follow its logic through to the end. China's provisions align more closely with the “security interest theory”, where the so-called ownership acquired by the creditor in form is essentially a security interest. In the process of civil enforcement, the legal effects of a transfer of ownership for security purposes involving movable property are closely tied to whether the publicity of the transfer of rights and the publicity of the security interest (registration) have been completed. For a transfer of ownership for security purposes involving movable property that has completed security registration, the secured creditor may enjoy priority in repayment during enforcement proceedings. For an unregistered transfer of ownership for security purposes, the unregistered secured creditor cannot prevail against other creditors of the guarantor who apply for civil enforcement. However, the creditor may complete the registration before the court takes compulsory measures to obtain priority; if the registration is completed after the court has taken compulsory measures, such an act of supplementary registration by the secured creditor falls under “other acts obstructing enforcement” as stipulated in Art. 24, Para. 1 of the “Provisions on Seizing, Distraining and Freezing Property in Civil Enforcement”. An exception applies if the registration is completed within the grace period for super-priority registration. The enforcement of a transfer of ownership for security purposes involving movable property should refer to the relevant rules governing the enforcement of a movable property mortgage, and the secured creditor bears the duty to liquidate. |
| Key words: Transfer of Ownership for Security Purposes, Civil Enforcement, Publicity of Ownership Transfer, Registration of Security Interest |
