抵押物转让规则——评《民法典》第406条

Rules for Transfer of Mortgaged Property—Comment on Article 406 of the Civil Code

摘要: 抵押物转让规则的立法几经周折，最终规定为《民法典》第406条。本文通过文义解释、体系解释、历史解释、目的解释等方法对《民法典》第406条进行分析。第一款适用范围理应排除403条与405条，当事人之约定内容为“禁止或限制转让抵押物”，以及其效力以该约定是否登记为断。第二款“通知”之效力一定不会影响物权行为之效力，然导致抵押权人利益受损者，应承担损害赔偿责任。“提前清偿或提存”以“可能损害抵押权”为前提，该前提难以穷尽，应具体案件具体判断，赋予法官自由裁量权。本条虽未规定受让人代为清偿，但《担保制度司法解释》第43条已有规定，故无需借助《民法典》第524条；涤除权与受让人代为清偿并非同一概念，应予区分，我国之立法应当认定为代为清偿制度。

Abstract: After several twists and turns, the regulation of mortgage transfer is finally stipulated as Article 406 of the Civil Code. This paper analyzes article 406 of the Civil Code by means of textual interpretation, system interpretation, historical interpretation and objective interpretation. Article 403 and 405 should be excluded from the scope of application of the first paragraph. The content of the agreement between the parties is “prohibition or restriction of transfer of mortgaged property”, and its validity depends on whether the agreement is registered or not. The effect of the notice shall not affect the effectiveness of the act of real right, but the mortgagee shall be liable for damages if the interests of the mortgagee are damaged. “Early settlement or deposit” is based on the premise of “possible damage to mortgage”, which is difficult to be exhausted, and judges should be given discretion to make specific judgments in specific cases. Although there is no provision in this article for the assignee to discharge the debt on behalf of the assignee, Article 43 of the Judicial Interpretation of Security System has provided for it, so there is no need to resort to Article 524 of the Civil Code. The right of extinguishment is not the same concept as that of satisfaction by the assignee, and should be distinguished.