以物抵债的法律效力研究

The Legal Validity Research of Repossessed Assets

摘要: 担保是法律规定或当事人约定的保证债务履行的方法和手段。随着近十年来的经济发展和交易方式多元化，反映在法律上的则是新担保方式的不断出现。“名为买卖，实为担保”的以物抵债等新型担保方式逐渐频繁地被用于现代经济交易中。由于最高院与部分省高院出台的相互矛盾的司法指导文件，导致各地方法院对于此类案件的处理各不相同，甚至时常发生同案不同判的情况。作者将通过对比观察中外传统与新型的担保形式、同案不同判的案例和司法指导文件，对担保制度中存在的强制性规定加以归纳，进而论证上述的以物抵债行为的效力认定问题及法律性质，以求最大程度上保护私法的意思自治及合同自由原则，使法律真正起到稳定社会经济交易秩序的作用。

Abstract: Guarantee is the method of guaranteeing the performance of debt stipulated by law or agreed by the parties. With the development of economy and the diversification of trading modes in recent ten years, new guarantee modes are constantly emerging in law. New types of guarantee, such as “called sales contract, actually guaranteeing” which is named as paying the debt by a thing, are increasingly used in modern economic transactions. Because of the contradictory judicial guidance documents issued by the Supreme Court and some provincial high courts, the handling of such cases by the local courts is different, and even different judgments of the same case often occur. By comparing and observing Chinese and foreign traditional and new forms of guarantee, cases of different judgments in the same cases and judicial guidance documents, the author summarizes the mandatory provisions in the guarantee system, and then demonstrates the validity identification and legal nature of the above-mentioned debt-in-kind behavior in order to protect the meaning of private law to the greatest extent. The principle of autonomy and freedom of contract makes the law really play a role in stabilizing the order of social and economic transactions.