民法典中债权让与和债权质押规范的统合  

Integration of the Rules on the Assignment of Claims and Pledge of Claims in the Chinese Civil Code

作　　者：李宇[1] 

机构地区：[1]上海财经大学法学院

出　　处：《法学研究》2019年第1期56-77,共22页Chinese Journal of Law

摘　　要：债权已成为现代交易的重要标的,实务中多采用债权让与或债权质押形式,两者在经济功能与法律规则上高度相似。我国合同法与物权法分别规定债权让与和应收账款质押,可适用的债权范围不一致,且各有法律漏洞:合同法未规定债权转让对第三人的效力,物权法未规定债权质押的对内效力与对债务人的效力。此种双轨制对司法实务造成诸多困扰,且无法适应交易需求,减损了制度效用。改进方向应是采用功能主义方法,统合债权让与和债权质押规则,包括统一标的范围,统一对外效力与对内效力规则,仅就债权质押的个别特殊事项设置特别规则。在民法典合同编中单设保理合同一章,不足以解决问题,且有违法典体系效益最大化之本旨,不如着力于债权让与一般规范的充实和完善。Claim has become an important subject matter in modern financing and other transactions.In practice,assignment of claims and pledge of claims are frequently used.Assignment and pledge are similar in economic function and legal rules.In China,the Contract Law provides for assignment of claims and the Property Law provides for pledge of receivables.The relevant provisions in the two laws are inconsistent in subject matter and there are legislative loopholes in both laws.The Contract Law contains assignment rules that are applicable to all ordinary claims,but no rule on the effect of assignment on third parties,such as publication(or perfection)of assignment.The Property Law contains pledge rules that are applicable to receivables only and establish modern notice-filing rules on pledge,but no rule on the effect of pledges between the parties and on the debtor,such as pledge notice requirement to the debtor and the defenses and right of the debtor to set-off.The dual scheme generates much inconvenience and confusion in judicial practice and is not adapted to the economic reality.The solution is to unify assignment and pledge rules by adopting the functionalist approach,including unifying the scope of claims as well as the internal and external effect of assignment and pledge,and setting aside only special rules on the enforcement of pledge.To solve the above-mentioned problems,it is far from enough to add a new chapter on factoring contract in the Title of Contract of the Civil Code.The provisions in the Chapter on Factoring Contract are not exclusive for factoring contract,but are about general rules on assignment of claims.This legislative approach is against the maximization of the value of civil codification.Therefore,it is better to improve current rules on assignment of claims in general than to make factoring contract rules only.

关 键 词：债权让与 债权质押 应收账款质押 保理 资产证券化 

分 类 号：D923.2[政治法律—民商法学]