【线上云德】疫情期间律师说（一百六十一）┃流押、流质的法律效力

所谓“流押”“流质”，是指在设立抵押或质押时，当事人预先约定，债务人不履行到期债务时，抵押财产或者质押财产所有权直接归债权人所有。

The so-called "collateral" and "liquid" means that when a mortgage or pledge is established, the parties agree in advance that the ownership of the mortgaged property or pledged property shall directly belong to the creditor when the debtor fails to perform the debts which are due.

关于流押和流质，出于保护债务人利益的考虑，流押、流质条款历来受到立法的禁止。现行《物权法》和《担保法》中均作了禁止性规定。《物权法》第一百八十六条规定“抵押权人在债务履行期届满前，不得与抵押人约定债务人不履行到期债务时抵押财产归债权人所有。”第二百一十一条规定“质权人在债务履行期届满前，不得与出质人约定债务人不履行到期债务时质押财产归债权人所有。”《担保法》第四十条规定“订立抵押合同时，抵押权人和抵押人在合同中不得约定在债务履行期届满抵押权人未受清偿时，抵押物的所有权转移为债权人所有。”第六十六条规定“出质人和质权人在合同中不得约定在债务履行期届满质权人未受清偿时，质物的所有权转移为质权人所有。”

For the purpose of protecting the interests of the debtor, the terms of deposit and liquid have always been prohibited by legislation. The current "property law" and "security law" have made prohibitive provisions. Article 186 of the Property Law stipulates that "the mortgagee shall not agree with the mortgagor that the mortgaged property belongs to the creditor when the debtor fails to perform the due debt before the expiration of the debt performance period." Article 211 stipulates that "The pledgee shall not agree with the pledgor that the pledged property shall belong to the creditor when the debtor fails to perform the due debt before the expiration of the debt performance period." Article 40 of the Security Law stipulates that "when the mortgage contract is concluded, the mortgagee and the mortgagor shall not agree in the contract that when the mortgagee is not paid off at the expiration of the debt performance period, the ownership of the mortgaged property shall be transferred to the creditor." Article 66 stipulates that "The pledgor and the Pledgee shall not agree in the contract that the ownership of the pledgee shall be transferred to the pledgee when the pledgee is not satisfied at the expiration of the debt performance period."

虽然禁止流押、流质是为了更好地保护债务人，但是，根据无效法律行为转换理论，流押、流质的条款并非绝对没有效力，而应当转化为清算型担保。必须再经过清算程序，抵押权人或质权人才能取得抵押财产、质押财产的所有权，以避免债权人事先乘债务人之急迫而滥用其优势地位，通过压低担保物价值的方式获取暴利。即禁止的是事前归属型担保，并非是事后清算型担保。并且，事后清算型担保具有融资灵活、交易成本低，第三人阻碍债权实现的可能性小等优势，更有利于促进合同交易。基于这种理念，在实践中逐渐确认了债权人对让与担保合同项下财产的优先受偿权利。

Although the purpose of prohibiting chartering and liquid is to better protect the debtor, according to the conversion theory of invalid legal act, the clauses of chartering and liquid are not absolutely invalid, but should be converted into liquidation guarantee. Only through the liquidation procedure can the mortgagee or the pledgee acquire the ownership of the mortgaged property and pledged property, so as to avoid the creditor to take advantage of the debtor's urgency in advance and abuse its dominant position, and obtain excessive profits by lowering the value of the collateral. That is to say, it is prohibited to be a prior attribution guaranty, not a post-liquidation guaranty. In addition, post-liquidation guarantee has advantages such as flexible financing, low transaction cost, and little possibility for the third party to hinder the realization of creditor's rights, which is more conducive to promoting contract transactions. Based on this concept, the creditor's priority right to be compensated under the security contract is gradually confirmed in practice.

《民法典》第四百零一条规定：“抵押权人在债务履行期限届满前，与抵押人约定债务人不履行到期债务时抵押财产归债权人所有的，只能依法就抵押财产优先受偿。”第四百二十八条：“质权人在债务履行期限届满前，与出质人约定债务人不履行到期债务时质押财产归债权人所有的，只能依法就质押财产优先受偿。”至此，从立法上，进一步缓和流押、流质无效的规定，认可流押、流质条款在抵押、质押范围内的优先受偿效力。

Article 401 of the Civil Code stipulates, "If the mortgagee agrees with the mortgagor that the mortgaged property is owned by the creditor when the debtor fails to perform the due debt before the expiration of the debt performance period, the mortgagee can only have priority in repayment of the mortgaged property according to law." Article 428: "If the Pledgee agrees with the pledgor before the expiration of the debt performance period that the debtor fails to perform the debt when it is due, the pledged property shall be owned by the creditor, the pledgee shall have priority in repayment of the pledged property according to law." At this point, from the legislation, to further ease the flow, the invalid provisions of the flow, recognized the flow, the flow of provisions in the scope of mortgage, pledge priority to be repaid.