| 摘要: | 讓與擔保，係指設定人與擔保權人合意成立讓與擔保契約，並由設定人將擔保標的之財產權移轉於擔保權人，以擔保財產權作為債權之擔保，於被擔保之債務無法依約履行時，由擔保權人依讓與擔保契約實行受償，若讓與擔保契約並未約定實行方法，則由擔保權人自由決定，係將擔保標的估價受償，亦或係變價受償，惟不論係採何種實行方式，擔保權人均應負清算義務，若所估得之價值或變賣之價金高於擔保之債務，於債權人充分受償後，仍應就餘額返還設定人。
讓與擔保因其非法律明文之擔保模式，擔保標的之種類並無特殊限制，凡具備讓與性之財產權均可為之，其權利義務大多係由雙方當事人合意定之，不須移轉擔保標的之占有、擔保標的得以有效運用、排除後續擔保權之成立、免除實務繁雜之實行程序，而具有高度之運用彈性與優勢；惟亦因其係非法律明文之擔保模式，就其法律定位非無爭議，且於通說實務所採之所有權移轉構造說下，設定人僅存有讓與擔保契約所生之債權，當擔保標的受不法侵害、擔保權人處分標的時，設定人均難以有效保障其權益。
實務上，雖已承認讓與擔保之合法性，且認其為習慣法所創設之擔保物權，然我國地政機關並不許可以讓與擔保為所有權移轉之原因登記，亦不許可讓與擔保權之設權登記，故不動產讓與擔保於實務上判定並非易事，往往成為當事人攻防之重點，亦有欠缺公示性之批評；動產讓與擔保，雖無須登記，惟亦因其無須占有且無需登記，亦有公示性之欠缺，實有害社會交易之安全。
本文以為，讓與擔保於我國係習慣法所創設之擔保物權誠屬的論，惟習慣物權終係為過度立法權無法立即立法之手段，最終仍應立法明文化，故透過我國學說、實務見解之整理分析，近似擔保制度之相互比較，嘗試提出立法草案與理由，使讓與擔保得以更加具體並解決讓與擔保之爭議與缺陷。
The Alienation Guarantee, refers to a contract in which the settlor and the holder of the security right mutually agree to establish an Alienation Guarantee contract. In this contract, the settlor transfers property rights of the subject matter to the holder of the security right to secure a debt. If the secured debt cannot be fulfilled according to the agreement, the holder of the security right enforces repayment as per the Alienation Guarantee contract. If the contract does not specify the method of enforcement, the holder of the security right has the freedom to decide, either by compensation based on the assessment of the subject matter or by selling it. Regardless of the method chosen, the holder of the security right is responsible for liquidation. If the assessed value or sale proceeds exceed the secured debt, the surplus should be returned to the settlor.
The Alienation Guarantee, as a non-statutory form of security, does not impose specific restrictions on the type of subject matter. The rights and obligations are mainly determined by mutual agreement between the parties, without the need to transfer possession of the subject matter, allowing for a flexible and advantageous approach. However, its legal position is not without controversy due to its non-statutory nature, which makes it challenging for the settlor to protect their rights in case of unlawful infringement or disposal of the subject matter by the holder of the security right.
The legality of Alienation Guarantee has been recognized, and it is considered as a customary form of security right. However, the Land office of Taiwan does not permit the registration of Alienation Guarantee as a reason for transferring ownership, nor does it allow for the registration of Alienation Guarantee rights. Therefore, in the case of real estate Alienation Guarantee, determining its validity is not straightforward and often becomes a focal point of contention among the parties involved. There have also been criticisms about the lack of transparency. In the case of movable property Alienation Guarantee, although it does not require registration and does not involve possession, it also lacks the transparency that is essential for the security of societal transactions.
The article suggests that the Alienation Guarantee is a customary form of security right in Taiwan. However, to address these issues effectively, it should be codified through legislation eventually. Therefore, the article proposes a legislative draft and rationale based on an analysis of the legal theories and the Judicial Practice in Taiwan, a comparative analysis of security systems, to make the Alienation Guarantee more specific and resolve its controversies and deficiencies. |
