摘要
保留所有权存在“双层担保结构”。第一层次是保留所有权的基本担保手段,包括出卖人的违约取回权、执行标的异议权和破产取回权。出卖人对上述权利的享有,以其所保留的“真正的所有权”为基础,而非以所有权保留登记为条件。第二层次为受偿权,以出卖人怠于行使第一层次权利或买卖物上存在第三人受偿权为前提。价金抵押权制度在保留所有权买卖中的适用,以第二层次中出卖人的受偿权与第三人的担保物权发生竞存为前提,而第三人对买卖物担保物权的取得,则需在确认买受人对保留所有权买卖物的“担保性处分权”的前提下,以继受取得为路径。同样,买受人为第三人所设立的浮动抵押权,之所以能够及于买受人后来购入的由出卖人保留所有权的动产,也需立足于买受人的“担保性处分权”进行解释。正常经营买受人规则在保留所有权买卖中的适用,需以“取得标的物”作为其构成正常经营买受人的要件,而这一要件的实现,无法寄托于善意取得,而需通过确认保留所有权买卖中买受人的“商事营业处分权”。
There is a “two-tier guarantee structure” for retained ownership. The first level is the basic guarantee means of retaining ownership, including the seller's right to recover from the buyer, the right to object of execution and the right to recover from bankruptcy. The seller's enjoyment of above rights is based on the fact that retained ownership is “true ownership”, and is not conditioned on the registration. The second level is the right to be compensated, which is based on the premise that the seller is idle in exercising the rights of the first level, or that the third party is compensated on the goods. When the rule of price mortgage is applied in the retain ownership business, it is required that the ownership of the seller and the mortgage of the third party coexist on the property. The acquisition of mortgage by the third party shall be conditional on the enjoyment of the “right to create security” by the buyer. When the rules of normal business buyer are applied in retain ownership business, the third party is to become the normal business buyer, the legal requirement as “acquisition of ownership” is necessary. The realization path of this requirement cannot be relied on the acquisition in good faith, but should be realized by confirming the “right of commercial business disposal” of the buyer in the ownership transaction.
出处
《法律科学（西北政法大学学报）》
北大核心
2024年第3期171-182,共12页
Science of Law：Journal of Northwest University of Political Science and Law
关键词
动产抵押
保留所有权
价金抵押权
正常经营买受人
chattel mortgage
retention of ownership
price mortgage
normal business buyer
