債權准佔有概念之反思

儘管我國學說與司法實踐很早就運用債權准佔有概念來解決債務人因信賴債權文書而錯誤清償的案型，但是其均忽略了債法規則中的債權准佔有和物權法規則中的准佔有是否相同這一關鍵問題。這也導致債權准佔有概念的內涵和外延不清。如果嚴格按照物權法中佔有的規則，佔有具備事實管領力和自主佔有之意思兩個方面的內容，這兩個方面也導致了佔有的不同效力。債權作為無體物，不存在事實上的管領力，因此債權准佔有無法類推佔有在事實層面的效力。即使認可債權准佔有這一概念，也只能類推佔有作為自主佔有之意思所導致的效力，例如先占或善意取得。但是，此種效力和錯誤清償問題的解決無直接關聯。更為妥當的做法是徹底放棄債權准佔有概念，繼而從債權文書的效力出發，從當事人合意和外觀法理兩個層面檢討債務人清償的效力。

Although Chinese research and judicial practice have long applied the concept of quasi-possession of credit to analyze the cases where debtors rely on obligatory right documents and make erroneous repayment, the crucial issue of whether the quasi-possession in obligation law rules and in real right law rules is identical have been largely ignored. This has also resulted in a lack of clarity regarding the connotation and denotation of the concept of quasi-possession of credit. If we strictly follow the rules regarding possession in property law, possession comprises the intention of factual control and the intention of possession on one’s own. These two aspects also result in different legal consequences of possession. As an incorporeal thing, credit does not possess factual control, thus it cannot be analogously equated with possession in terms of its validity of factual dimension. Even if the concept of quasi-possession of credit is recognized, it can only be analogously compared to the validity based on the intention of possession on one’s own, such as occupancy or good-faith obtainment. However, this validity does not have a direct connection with the resolution of defective discharge. A more appropriate approach is to completely abandon the concept of quasi-possession of credit and instead to examine the validity of obligatory right documents, considering the parties’consent and appearance principle.