南都学坛2024，Vol.44Issue(1)：78-88,11.
《民法典》动产与权利担保制度的商法属性解释论
Interpretation of the Commercial Law Attributes of the Security System of Movable Assets and Rights in the Civil Code of the People's Republic of China
摘要
Abstract
Article 388 of the Civil Code of the People's Republic of China introduces the functionalist security legislative model,which enables the unified security system for movable assets and rights to have a relatively distinct commercial law attrib-ute.However,due to the legislative system of the integration of civil and commercial affairs,most of its commercial elements are hidden under civil norms and cannot be revealed.The current guarantee system cannot respond to the particularity of commercial guarantees and the needs of commercial transaction practice in a timely manner,which has an impact on commercial transaction practice.Therefore,the legislative system of the integration of civil and commercial affairs needs to be applied to the law to achieve general integrated regulation in essence,and to distinguish the position of regulation in particular.In this regard,the in-troduction of a commercial law perspective is extremely necessary.Commercial guarantee prioritizes efficiency and cost-effective-ness in terms of its value orientation and render functionalism as its underlying logic,imbuing more commercial elements in its system design.The principle of distinction is used to distinguish and integrate the civil and commercial guarantee norms in the guarantee system,so as to forge a mode of"integration of civil and commercial affairs in form"and"integration of unification and separation in substance"in the guarantee system.At the same time,the application of commercial law-based thinking should take into account the individuality of commercial norms and the stability of civil norms,in order to respond to the commercial law at-tributes of the unified security system for movable assets and rights and promote the development and innovation of commercial fi-nance.关键词
《民法典》/动产与权利担保/商事担保/商法属性Key words
Civil Code of the People's Republic of China/security of movable assets and rights/commercial guarantee/commercial law attribute分类
社会科学引用本文复制引用
汪振江,贺中正..《民法典》动产与权利担保制度的商法属性解释论[J].南都学坛,2024,44(1):78-88,11.基金项目
国家社会科学基金项目"治理整顿背景下网络借贷机构退出机制研究",项目编号:20STA046. （）
