担保物权与时效的关联性研究
徐洁担保物权与时效的关联性研究
Real Right for Security and Prescription
期刊名称：《法学研究》
期刊年份：
作者：徐洁
单位：西南政法大学
中文关键词：物权法;担保法;担保物权;时效
英文关键词：real right law;security law;real right for security;prescription
中文摘要：
时效制度为公共秩序而牺牲公平，担保物权则是为实现公平而保障债权。夸大时效的作用而削弱担保物权的效力无益于社会信用的培育。现代法律理论已否定了法实证主义观念，将道德上的义务重新纳入法的范畴，将其视为法律上的义务，故时效并不产生消灭权利的效果，担保债权的担保物权仍有理由存在。物权法第202条的规定不但有立法技术上的缺陷，而且有价值选择上的偏差，应当重新检讨和修正。为符合社会正义观念和满足现实需求，构建不受债权时效影响的担保物权制度是必要的。
英文摘要：
Prescription system ensures the public order at the cost of fairness, while real rights for security ensure credit for the purpose of fairness. Exaggerating the role of prescription and impairing the effect of real rights for security does not help to develop social credit.Article 202 of Chinese Real Right Law stipulates that, the mortgagee should exercise the mortgage within the limitation of action of the main creditor’s right, otherwise the people’s court shall not protect the mortgage. It establishes a rule that the mortgage is influenced by the prescription of the main creditor’s right, which has three flaws. First of all, it has flaw in the legislative techniques. Our civil law is founded on the prescriptive theory of the German civil law, while it tries to have an effect as in French and Japanese civil law, thus this paradox becomes a barrier hard to overcome in theory. Secondly, it is wrong in the value orientation. It places the prescription system which eliminates credit relations above the validity of the mortgage, thus the function of guaranteeing credit of real rights for security is greatly weakened, which is opposite to the strong demand for social credit of current China. Thirdly, it fails to fit the spirit of modern legal theory. Modern legal theories have denied the conception of legal positivism, regarding morality as legal obligations in the category of law again. Since the 20th century, legislation of most countries gives sufficient consideration to the moral appeals for law. Thus debt after prescription is regarded as the legal obligation, bestowed with legal position and corresponding effects. Meanwhile, it is stipulated that real rights for security are not affected by the prescription of the secured debt. This is the tendency of the development of modern theory of law.Therefore, the provision specified in Article 202 of Chinese Real Right Law should be reviewed and amended. To be in agreement with social justice and the need of reality, it is necessary to frame a system of real rights for security without the influence of the prescription of the main creditor’s right.
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