擔保物權之現代化──以從屬性緩和之法秩序變遷為例

The Modernization of Lien：Taking the Change of Legal Order from the Relaxation of Subordination as an Example

隨著金融活動頻繁，擔保制度之健全亦需與時俱進，消費借貸契約為日常生活常見之法律關係，通常銀行要求提供擔保動產、不動產或權利設定抵押權，亦即須以債權債務關係存在，始有擔保物權之存在意義，此乃從屬性之目的。為使權利得以實現，若固守從屬性將致交易成本提高，則有賴司法實務見解與法規範之調整、完善，是以本文藉由實證法（法院裁判）、學說見解、國外立法例為研究素材，以探討從屬性之理論為出發點，藉由習慣法物權明文化與新興擔保物權之出現，從本土法學之剖析，至比較法之探索，形塑擔保物權從屬性緩和化之法秩序變遷軌跡，以因應民法物權編施行90週年後續發展之擔保物權現代化新視野，並從中釐清擔保債權特定性原則、擔保物權從屬性原則之關係，以及從屬性與無因性之辨別，更以將來債權設定抵押權之生效時點為之論證。

With the prosperity of financial consumption business, the guarantee system should keep pace with the times and be improved accordingly and constantly. Consumer loan contract is one of the most common legal relationships in daily life, in which debtor are typically required by banks to provide chattel, real estate or right as security. That is to say, a basic relationship between creditor's rights and debt serves as the prerequisite of lien. The purpose of lien is to guarantee the realization of creditor's rights in the basic creditor-debtor relationship. This is the origin of lien’s“subordination”. However, if the subordination principle is abided by rigidly, the transaction cost can increase unreasonably. It explains why to adjust the strictness of the principle of subordination by judicial practice and legal norms is worth considering. Therefore, based on the positive law (court judgment), theoretical opinions and foreign legislation, this paper, from the analysis of local law to the exploration of comparative law, aims to take the theory of subordination principle as the starting point, to start with the emerging lien, to focus on the effective time point of the mortgage set for the future creditor's rights, to clarify the relationship between the secure claims specification principle and the principle of subordination as well as the relationship between the principle of subordination and abstraction, to observe the possible space of the property right customary law codification, and to ultimately outline the historical track of the legal order of the relaxation of lien’s“subordination” with responding to the demand of the modernization of lien at the 90th anniversary of the implementation of the Civil Code and its chapter on property rights.