China: 从《九民纪要》看让与担保的适用

Last Updated: 28 November 2019
Article by Zheng Hongyu and Wang Huaizhi
Most Read Contributor in China, November 2019

让与担保,是指债务人(或第三人)为担保债务人之债务,将担保标的物财产权先行转移给债权人(担保权人),若债务人不履行或不完全履行债务,债权人可以就该担保物优先受偿,若债务人清偿债务的,标的物则返还给债务人(或第三人)的一种非典型担保方式。

虽然让与担保在经济行为中并不少见,但是我国现行法律并未对让与担保制度做出明确的规定,致使在司法实践中,对让与担保的效力、担保人所承担的责任范围、权利实现时的"流质"或"流押"限制,亦有不同裁判尺度及结论。

本文拟结合近期最高人民法院发布的《全国法院民商事审判工作会议纪要》(以下简称《九民纪要》),对让与担保的效力、特征、与以物抵债的区分以及让与担保优先受偿的物权效力进行分析探讨。

一、《九民纪要》第71条关于让与担保的特征

作为一种权利移转型担保,让与担保是以转让标的物权利的方式来达成债权担保的目的,包含"让与"和"担保"两个基本要素。

最高人民法院在(2018)最高法民终119号[修水县巨通投资控股有限公司、福建省稀有稀土(集团)有限公司合同纠纷]等案件中对股权让与担保的合同效力作出了正面肯定。该案中,最高院从是否违反物权法定原则、通谋的虚伪意思表示和回避流质契约条款三个方面进行论证,论证逻辑与《九民纪要》中关于让与担保合同效力的逻辑如出一辙。

根据《九民纪要》关于让与担保的论述,并结合最高院(2018)最高法民终119号案,让与担保通常有下述特征:

1.存在与让与担保物相对应的主债权。需要指出的是,虽该债权系具有不特定性的将来债权,但在让与担保的设定中,被担保债权不以已经存在的现实债权为必要,将来变动中的不特定债权,亦可成为担保对象。

2.具有让与担保的真实意思表示。

对于让与担保是否是当事人真实的意思表示,应当以法律规定以及当事人意思表示这两个层面来分析。

就现行法律规定而言,根据《合同法》第52条规定,"有下列情形之一的,合同无效:(一)一方以欺诈、胁迫的手段订立合同,损害国家利益;(二)恶意串通,损害国家、集体或者第三人利益;(三)以合法形式掩盖非法目的;(四)损害社会公共利益;(五)违反法律、行政法规的强制性规定。"本条规定未将因当事人虚假意思表示列为合同无效的法定情形。《民法总则》第146条则规定,"行为人与相对人以虚假的意思表示实施的民事法律行为无效。以虚假的意思表示隐藏的民事法律行为的效力,依照有关法律规定处理。"根据该条规定,如当事人之间存在通谋的虚假意思表示,基于该虚假意思表示实施的民事法律行为应为无效。因此,让与担保是否无效的关键在于,当事人是否具有通谋的虚假意思表示。对此,实践中有不同看法,有观点认为让与担保中,债务人将标的物权利转移给债权人,仅仅属于外观形式,其真实意思是在于设定担保,故为双方通谋而为虚假的转移权利的意思表示,应为无效。但事实上,在让与担保中,债务人为担保其债务将担保物的权利转移给债权人,使债权人在不超过担保目的的范围内取得担保物的权利,是出于真正的效果意思而做出的意思表示。尽管其中存在法律手段超越经济目的的问题,但与前述禁止性规定中以虚假的意思表示隐藏其他法律行为的做法,明显不同,不应因此而无效。

3.以一定的方式将让与担保物的权属转移至债权人,如通过办理备案登记、权属变更登记、交付等方式将让与担保物的权属转移至债权人名下。

在《最高人民法院关于审理民间借贷案件适用法律若干问题的规定》(法释〔2015〕18号)(以下简称《民间借贷规定》)发布实施前,最高院曾有判例[(2011)民提字第344号:朱俊芳与山西嘉和泰房地产开发有限公司商品房买卖合同纠纷案]认为:"1.双方当事人基于同一笔款项先后签订《商品房买卖合同》和《借款协议》,并约定如借款到期,偿还借款,《商品房买卖合同》不再履行;若借款到期,不能偿还借款,则履行《商品房买卖合同》,对方当事人要求并通过履行《商品房买卖合同》取得房屋所有权,不违反《担保法》第四十条、《物权法》第一百八十六条有关"禁止流押"的规定。"

但从目前的司法判例来看,允许债权人取得物权的做法可能触犯流押禁令,从而损害债务人或者其他债权人的利益。司法实践禁止债权人通过履行买卖合同取得物权,也是出于流押禁令的考虑。

在最高院判例[2015)民申字第3051号: 黑龙江申腾房地产开发有限公司、贾炳艺等与黑龙江申腾房地产开发有限公司、贾炳艺等民间借贷纠纷案]中,最高法院就认为,双方当事人关于交付房屋以消灭债权债务关系的约定"排除了对担保财产的清算程序","存在因市场变化而产生实质不公的可能"。在该问题上,《民间借贷规定》第24条第2款进行了明确,债权人有就让与担保物的价值与债务之间的差额进行清算的强制义务,在此义务之下债权人即使选择履行买卖合同,亦无触犯流押禁令的规定。

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