《民法典》第406条(转让抵押物规则)评注

Commentary on Article 406 of The Civil Code (Rules for Transfer of Mortgaged Property)

摘要: 《民法典》第406条一改不允许抵押物自由转让的旧立场，回归了物权法倡导物畅其流的正轨。第1款第2句提及的禁止转让特约只能发生债法效力，在先有约定而转让的话引起的是违约责任，《担保制度解释》第43条对该句的细化实属误读。第2款规定的通知义务之违反不影响转让行为效力。第2款的设置是配合《民法典》允许抵押物转让而开辟的平衡机制，在抵押权追及力变弱的场合通过保全价款的模式补强，并不构成权利的重叠保护。抵押权人对价款不享有优先受偿权。应当对“抵押权不受影响”的文义做体系解释，在诸多情形中追及效力将消灭。

Abstract: Article 406 of the Civil Code reverses the old position of not allowing the free transfer of mortgaged property, and returns to the proper track of property law advocating the free flow of property. The non-transfer special agreement mentioned in the second sentence of Paragraph 1 can only have the effect of debt law. If there is a prior agreement but the transfer still occurs, it will cause breach of contract liability. The refinement of this sentence in Article 43 of the Judicial Interpretation of the Guarantee System is a misreading. The violation of the notification obligation stipulated in Paragraph 2 does not affect the validity of the transfer act. The setting of Paragraph 2 is to coordinate with the Civil Code allowing the transfer of mortgaged property and open up a balancing mechanism. In cases where the enforceability of the mortgage right becomes weaker, the price payment mode is strengthened to supplement it, and does not constitute overlapping protection of rights. Mortgagees do not have priority repayment rights over the price payment. The textual meaning of “the mortgage right shall not be affected” should be interpreted systematically. In many cases, the enforceability will be extinguished.