資產收益權交易的法律構造——基於最高人民法院與高級人民法院41份裁判文書的分析

The Legal Formation of the Transaction of Proceeds on Asset: An Analysis based upon 41 Judgements in Supreme People’s Court and Provincial People’s High Courts

資產收益權是近年來出現且活躍於商業實踐中的概念，但學界與商業界對其性質、權利內容等存在諸多誤解。通過分析41起相關裁判可知，資產收益權看似是一種新型權利，但實際上屬於債權。與一般債權的不同之處在於，資產收益權與底層資產掛鉤，債權的履行期限始於底層資產轉讓之時，而債權數額一般是底層資產的轉讓價款。資產收益權這一概念被創設出來，旨在規避“底層資產禁止轉讓”的法律規範。資產收益權轉讓名為債權讓與，實則是債權設立行為，受讓人對於底層資產或其收益不具有排他效力。為克服該缺陷，實踐中通行做法是在底層資產上設立抵押權。資產收益權轉讓、回購是實踐中最常見的交易模式，依據穿透性裁判思維，其性質上屬於借款合同。轉讓回購合同系脫法行為，其效力問題應視所規避的法律規範的效力層級予以判斷。轉讓回購合同應適用借款合同的規範，但其屬於金融借貸，不適用民間借貸的利率管制。

Proceeds from asset is a concept that has emerged in recent years and is commonly used in commercial field. Although proceeds from asset sounds like a new type of right, but its legal nature is creditor’s right. The difference from the general creditor’s rights is that proceeds from asset is linked to the underlying assets. The performance period of the creditor’s rights starts when the underlying assets are transferred, and the amount of the creditor’s rights is generally the price of transferring the underlying assets. The reason why businessmen created the concept is to circumvent the prohibition on the transfer of underlying assets. Although the transfer of proceeds from asset is called the assignment of creditor’ s rights, it is actually an act of establishing creditor’ s rights and does not produce the legal effect of assignment. The transferee of proceeds from asset does not have exclusive effect on the underlying assets or their proceeds. Therefore, the common practice is to establish mortgage rights on the underlying assets. The transfer and repurchase of proceeds from asset is the most common transaction mode in practice. The contract is a loan contract in nature. The contract is a legal circumvention, and its validity should be judged according to the level of validity of the legal norm circumvented in specific cases. Although the contract should refer to the norms of loan contract, because it is a financial loan, the interest rate limit of private loan is not applicable.