擔保法律制度發展三十年

The Development of Collateralization during the Three Decades in China

擔保制度的建立和發展以社會經濟生活中的商業信用的需求為前提和基礎。改革開放三十年，擔保法律制度經歷了從初步確立到逐步完善的發展過程。20世紀80年代是擔保法律制度的初步確立階段。這一階段擔保制度的目的僅是為擔保合同的履行，擔保方式以保證為主，對物的擔保和金錢擔保僅有原則性規定，缺乏可操作性。20世紀90年代《擔保法》的施行標誌著擔保法律體系正式確立，這表現在確立了擔保法的宗旨和原則，確立了保證擔保的基本規則，確立了抵押擔保、質押擔保和定金擔保方式。進入21世紀後，擔保法律制度日趨完善，擴大了擔保制度的適用範圍和功能，完善了人的擔保和金錢擔保制度，尤其是完善了擔保物權制度：統一規定了擔保物權的優先效力，擴張了可抵押財產的範圍，明確了抵押登記的效力和抵押權的順位，確認了抵押權的追及效力、抵押人的再抵押權及出租權，以及抵押權人的抵押權、保全權和處分權等，規定了動產浮動抵押及最高額抵押的轉讓、變更及確定等規則，明確了抵押權的行使期限，確立了動產質權的設立規則、質權人轉質的權利及出質人請求質權人實現質權的權利等，確立了權利質權的設立規則，規定了應收賬款質權，明確了留置權的成立條件和商事留置的特殊性，確立了擔保物權並存時的優先規則。

The establishment and the development of collateralization built the premise and foundation on the needs of commercial credit of social and economic life. During the three decades of reform and open, collateralization go through a process from the initially established to gradually improved. The eighties of twentieth century was the phase of initially established for the law of security. Collateralization at this stage only for the purpose of guaranteeing the performance of the contract, the way of warrant mainly by way of security, and the security to object only had some principle provisions which lack of operability. The performance of “security law” in the 90’s of 20th century marked the official establishment of the legal system of security, which is reflected in the establishment of the purposes and principles of Guarantee Law and fundamental rules, collateral, pledge of collateral and the way of security deposit. After entering the 21st century, the legal system of security became more ripe, it had expanded the scope and functions, improved human security system and money security system, especially perfected the system of security interest: uniformly provided the priority effect of security interest, expand the scope of property that can be secured, the scope of the mortgaged property, cleared the effect of mortgage and mortgage registration of the priority right, the effectiveness of the mortgage registration and the order of mortgage, confirmed the effectiveness of the recovery for mortgage right, the right to remortgage and rental rights for mortgagor, the right to mortgage, preserve and dispose for mortgagee, provided the floating mortgage for movable property and the rules of alienation, alteration and establishment for maximum mortgage, cleared the term of mortgage, established the rules of the establishment for the right of pledge to movable property, the right to transfer the right of pledge for pawner, as well as the right to request the pawner to achieve the right of pledge and so on, established the rules for the right of right pledge, provided the right of pledge of accounts receivable, cleared the conditions establishment of lien and the special nature of business liens, established the priority rules when security interests the coexistence happened.