浮动抵押的财产变动与效力限制
董学立浮动抵押的财产变动与效力限制
Instability of Floating Charge Assets and Related Priority Arrangement
期刊名称：《法学研究》
期刊年份：
作者：董学立
单位：南京财经大学法学院
中文关键词：浮动抵押;购买人不受追及规则;购买价金担保权;受偿次序
英文关键词：floating charge;buyer’s immunity to former floating charge;purchase money security interests;order of satisfaction
中文摘要：
物权法第181条规定了浮动抵押制度。浮动抵押的突出特征在于抵押财产的可变性。与此相适应，物权法第189条第2款规定了正常经营活动中的购买人不受追及规则，即浮动抵押权不得对抗正常经营活动中已支付合理价款并取得抵押财产的购买人。但物权法未就与浮动抵押同样密切相关且更具实践价值的购买价金担保权的效力作出规定，对购买人不受追及规则的植入也并非周到、科学。为此，须借鉴他国经验予以补充完善，构建统一而明晰的动产担保物权受偿次序规则。
英文摘要：
The floating charge has been stipulated by § 181 of Chinese Property Law. The outstanding characteristic of floating charge is the instability of floating charge assets. Accommodating to this characteristic, the immunity of “buyers in the ordinary course of business”, that is, the “outflow” floating charge assets are immune to the former floating charge rights, has also been stipulated by § 189(2) of Chinese Property Law. This system is provided at large in the foreign personal property security interest law. Compared to the foreign law, our buyer’s immunity system is made simply and crudely, even with some mistakes, which should be perfected and clarified by extracting experiences from abroad and combining the interrelated provisions of our Property Law. Owing to the instability of the floating charge property, the specific thing which flows into the floating charge property will automatically become the floating charge property, and thus the floating charge mortgagee will also have mortgage interests on it without any other additional formalities. But as to whether the former floating charge rights can be priority to the later hypothec attached on the thing named as “purchase money security interests (PMSI)” in foreign law automatically, there is no answer to this key problem in our property law. To resolve this problem, we should definite its concept, differentiate its type, and establish the efficacy of the purchase money security interests, basing also on the experiences from foreign law, to respond to the urgent need in legal practice.There are also other systems concerning to floating charge which should be taken seriously. Firstly, floating charge is applied mainly to chattels security interest, so the uniform registration system of personal property security interest and the scientific classification system of collateral should be established. Secondly, floating charge and its related systems focus on the order of satisfaction of different security interests on chattels, while our Property Law has significant defect in this aspect, in short of unified and clarified rules concerning to such order. Lastly, floating charge involves also legal implantation. Our legislation on property law and its perfection should learn from and extract abroad legal systems on personal property security interest.
全文阅读： 点击下载
