流质条款的司法现状分析

发布时间：2018-03-21 05:33

本文选题：流质条款　切入点：以物抵债　出处：《昆明理工大学》2017年硕士论文　论文类型：学位论文

【摘要】：在物的担保关系中,我国《物权法》及《担保法》明确做出了流质条款无效的规定,但在实践中,流质约定仍然经常出现,并且还出现了存在于担保物权外的流质约定。比较典型的如让与担保、以物抵债或者买卖合同担保借贷中,当事人之间约定不能按期还款即转移标的物所有权以实现债务清偿。虽然这些约定并不处于标的物上存在有担保物权的前提下,但是在实践中,往往有法院依据我国《物权法》流质条款无效的规定而否认当事人约定的效力。在我国法院的具体裁判中,对于此类协议的效力问题仍存在争议。本文通过对北大法宝中以“流质条款”为关键词检索出的案例进行整理归纳,按照不同前提条件下出现的流质条款,分类型对我国法院目前的相关认定态度做出了分析。对于担保物权下的流质条款,法院通常严格依据我国《物权法》规定来判定当事人约定是否属于流质条款;在让与担保中,多数法院承认了让与担保的效力,但是对让与担保中当事人约定的流质条款仍然依照我国《物权法》中对于担保物权中流质条款的规定判定其无效;在以物抵债协议中,对于当事人以物抵债的约定,法院多肯定了当事人约定的效力,但也有小部分法院将当事人约定的转让标的物所有权抵偿债务的约定视为流质条款;而近年来新兴的以买卖合同担保借贷的担保方式,法院对其效力多采取的态度是此种行为构成流质条款,当事人对于买卖标的物的合意并不真实,其真实意思是担保债务人债务的履行,对于标的物所有权的转让约定有违我国《物权法》对于流质条款无效的规定。法律对于流质条款无效的规定有损当事人意思自治,并且在不存在其他对担保物享有权利的第三人或当事人在流质条款中约定了清算条款的情形下,仍适用流质条款无效的规定也并不存在其合理性。为了规避流质条款无效的规定,当事人也会使用其他相似约定来保证自己权益的实现,不仅不利于交易便捷,而且由于法律规定的空白,对于法院审判也造成许多困难,出现同案不同判的情形,不利于维护法院判决结果的权威性。因此,有条件的肯定当事人设定的流质条款的效力,应成为我国未来立法所应考量的内容。
[Abstract]:In the relations of rem, our country's Real right Law and the guarantee Law clearly make the provision that the liquid quality clause is invalid, but in practice, the liquid quality agreement still appears frequently. There are also fluid quality agreements that exist outside of security interests. Typically, such as giving security, repaying debts in rem or secured loans under a contract of sale or purchase, The agreement between the parties cannot transfer the title to the subject matter in order to realize the repayment of the debt on time. Although these agreements are not in the premise of the existence of a security interest in the subject matter, in practice, There are often courts that deny the validity of the agreement made by the parties according to the invalid provisions of the fluid clause in our country's Real right Law. In the specific judgment of the courts of our country, There is still controversy about the validity of this kind of agreement. This paper summarizes the case of "fluid clause" in the magic weapon of Peking University, according to the different conditions of the fluid clause. The court usually strictly according to the provisions of the property Law of our country to judge whether the agreement of the parties belong to the flow clause; in the assignment guarantee, the court usually according to the provisions of the property Law of China to determine whether the agreement of the parties is a liquid clause. Most courts have recognized the validity of the assignment guarantee, but the liquid clause agreed by the parties in the assignment guarantee is still invalid according to the provisions of the property Law of our country regarding the flow clause in the security interest; in the agreement of recompense in rem, For the agreement of the parties to pay for debts in rem, the court has affirmed the validity of the agreement, but there are also a small number of the parties agreed to transfer the subject matter of the agreement to settle the debt as a liquid clause; However, in recent years, the new way of guaranteeing loans and loans secured by sale and purchase contracts, the attitude taken by the court on its effectiveness is that this behavior constitutes a liquid clause, and the parties' agreement to buy and sell the subject matter is not true. The real meaning is to guarantee the performance of the debtor's debt, and the agreement on the transfer of title to the subject-matter is contrary to the provisions of our country's Real Law on the invalidity of the liquid clause. The invalidation of the fluid clause in the law is detrimental to the autonomy of the parties concerned. And in the absence of any other third party or party having rights over the guaranty, where the liquidation clause is agreed upon in the flow clause, In order to circumvent the invalid provisions, the parties will also use other similar agreements to ensure the realization of their rights and interests, which is not conducive to the convenience of transactions. Moreover, because of the blank provisions of the law, there are also many difficulties for the court to try. The appearance of a different judgment in the same case is not conducive to safeguarding the authority of the court judgment result. Therefore, the conditional affirmation of the validity of the fluid clause set by the parties concerned, Should become the content that our country future legislates should consider.
【学位授予单位】：昆明理工大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.2

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