論所有權讓與交易的擔保化及其限度

Discussion on Transfer Transactions with Security Functions Becoming Secured Transactions and its Limits

具有擔保功能的所有權讓與交易泛化適用擔保規則存在弊端。擔保目的是擔保合同的構造核心，有擔保功能但無擔保目的的交易不屬擔保。在不同擔保目的的限定下，債權人形式上取得的所有權可能屬僅具變價功能的純粹擔保權，也可能屬兼具變價與歸屬確認功能的擔保性所有權，後者在法律效果上與典型擔保有所區別。據此，可以將所有權讓與交易類型化為補充型、混合型和創新型三類。補充型交易具有完全的擔保功能，應與典型擔保一體適用擔保規則;混合型交易具有不完全擔保的特點，在與典型擔保進行規範統合的同時，應保留債權人通過歸屬清算等合同機制成為完全所有權人的可能;創新型交易雖有擔保功能但不屬擔保，法官應對此種規範的限縮解釋負擔實質論證義務。

There are disadvantages to the generalized application of security rules to title transfer transactions with a security function; the security purpose is at the core of the construction of a guarantee contract, and a transaction with a security function but without a security purpose is not a security. Subject to different security purposes, the formal acquisition of title by a creditor may be a pure security right with a mere realization function or it may constitute a security title with a combination of realization and attribution, which is different in legal effect from a typical security. Accordingly, title transfer transactions may be typified as complementary, hybrid and innovative. Complementary transactions were fully functional as security and should be subject to the same security rules as typical security; hybrid transactions, which were characterized by incomplete security, should be regulated as typical security while preserving the possibility for the creditor to become a full owner through contractual mechanisms, such as vesting and liquidation; and innovative transactions, which were functional as security but not security, and for which the judge had a substantive burden of proof in the restrictive interpretation of such a regulation.