Institutional thinking on pawning right

The pawning right system is an ancient real right system in China. However, due to the heavy punishment imposed on the people for a long time in the history of China, the pawning right system has not been regulated by a detailed and complete law, which has led to continuous disputes among the people about pawning right. The Civil Code promulgated and implemented in the 19th year of the Republic of China is the most complete code in the history of China. Nevertheless, due to the system itself, after the establishment of the pawning right, the rights and interests of the parties to the pawning right are still inevitably controversial. (1) The right to gain profits from the use of pawnbrokers. After paying the standard price, the pawnbroker enjoys a wide range of possession, use and income rights to the standard object. The pawnbroker's scope of use and income are not different from the owner's authority, but the pawnbroker can't make the final punishment to the pawnbroker. Pawnshop owners are equivalent to real estate owners. If the pawn is land, the pawnbroker can use the land for farming, or build houses or open canals and dikes on the land; If the pawn is a house, the pawnshop has the right to occupy, use or lease it to others, and also has the right to renovate, build a house or change its original use, such as changing the house into a factory building. When the pawnbroker redeems the pawnbroker, the pawnbroker has the obligation to restore the original state, and also has the right to recover the improvement investment he has implemented. If it cannot be recovered or fails to make up for the investment loss of the pawnshop after recovery, it shall be retained after consultation and evaluation between the pawnshop and the pawnbroker. This is a typical difference between the pawning right system and the real estate pledge system. The controversial point of the problem is that the pawnshop has the obligation to restore the original state and the right to ask the original owner to make the same improvement. So, under what circumstances are obligations and under what conditions are rights? If it is a right, there is no clear and easy-to-operate objective standard for pawnbrokers to bid. The improvement of pawnbrokers' investment is meaningful or beneficial to pawnbrokers, but not necessarily meaningful, beneficial or even harmful to pawnbrokers. Due to the different subjective and objective situations, the opposition of interests and the different judgments on improving the value of investment, the two sides could not find a fair and reasonable solution to the disputes over whether the pawnshop should be restored to its original state or whether the pawnshop should stay and buy, and the price. Therefore, the pawnbroker's extensive usufructuary right to the pawnbroker, like everyone else, inevitably laid the groundwork for future disputes between the two sides. To this end, Article 2 of the Measures for Liquidation of Real Estate Pawn has to be added after this clause: "... the valuation of both parties shall be reserved and purchased by the original owner. If negotiation fails, it shall be determined by the court of first instance."

(2) From the time limit of pawning right. The time limit of pawning right refers to the time limit for pawnshops not to redeem pawnbrokers. When the pawn period expires, the pawnbroker can only exercise the right of redemption. If the pawnshop fails to exercise the right of redemption within the time limit, the right of redemption will disappear and the pawnshop will acquire the ownership of the pawnshop. In the early history of China, the duration of pawning right was completely freely agreed by the parties, and the law did not make any restrictions. After the agreed pawn period expires, if the pawnbroker refuses to redeem, the pawn relationship will exist forever. As long as the pawnbroker advocates redemption, the pawnbroker cannot resist redemption. Although Gan Long 18 stipulates that "if the property in the sales contract is unknown and has not been sold within 30 years, it will be redeemed as usual. If it is 30 years later, it is considered that the property is sold out and redemption is not allowed. " But in fact, there is no time limit for the pawning right after Qianlong 18. The period of pawning right and redemption right is not legally bound, which is the main source of disputes after the establishment of pawning right. First, the law does not limit the time limit of pawning right, but allows the parties to freely agree, resulting in the situation that the time limit of pawning right is too long. Thirty or forty years is not surprising; Common in 50 or 60 years. When the right of redemption can be exercised, both parties to the pawning right are often dead, and the heirs of the original parties know little or nothing about the relationship between pawning rights, which is so old that evidence is hard to find and disputes are inevitable. Second, the right of redemption has no time limit, that is to say, as long as the pawning right exists, the right of redemption will exist forever. Whether and when the right of redemption is exercised depends entirely on the pawner. Therefore, how long the pawnbroker can survive, when the pawnbroker loses the rights of the pawnbroker and whether the pawnbroker can acquire the ownership of the pawnbroker are often in an uncertain state. The long-term uncertainty of the relationship of pawning right and the ownership of pawning right property will inevitably lead to the instability and insecurity of other property relations based on this. The long-term existence of the right of redemption is a potential threat to the pawnbroker's pawnbroker's pawnbroker's pawnbroker's interests, and to the interests of the relative person who has property relations with the pawnshop, such as transfer and lease, which may cause disputes at any time. Lawmakers in the Republic of China realized that the uncontrolled pawn period and redemption period were the root causes of disputes. "The time limit of pawning right can be freely set by the parties according to the principle of freedom of contract, but in order to avoid hindering social and economic interests and reducing disputes, the law should set restrictions." Therefore, the Civil Law of the Republic of China clearly stipulates the statutory period and the effective period of the exercise of the right of redemption. According to this provision, there are three situations: first, the term of pawning right is based on the principle of free agreement by the parties, but the term of pawning right agreed by the parties shall not exceed 30 years, and if it exceeds 30 years, 30 years shall prevail. Within two years after the expiration of the time limit, the pawnshop may exercise the right of redemption. Those who fail to exercise the right of redemption within the time limit shall lose the right of redemption, and the pawnshop shall acquire the ownership of the pawnbroker. Second, the parties have not clearly agreed on the time limit of pawning right, but agreed that the occurrence time of a certain fact is when the time limit of pawning right expires, which is also the beginning of the exercise of foreclosure right. Thirty years have passed since the establishment of the pawning right, but the agreed things have not yet happened, and the expiration of the time limit should still be at the expiration of 30 years. For example, the parties agree that when the mortgagor dies or the war stops, the mortgagor can only exercise the right of redemption. Although the facts agreed by the parties are certain, when they happen is uncertain, so it is called "indefinite period". Third, when the parties set the pawning right, they did not agree on the time limit of pawning right, nor did they agree on "indefinite". Pawnshops can redeem pawnbrokers at any time at the original price. If the pawnshop fails to redeem the pawnshop after 30 years, the pawnshop will acquire the ownership of the pawnshop. The above provisions on the duration of pawning right and the limitation of foreclosure right can be described as complete and complete. However, it is still uncertain whether to exercise the right of redemption and whether the ownership of the pawn belongs to the pawnbroker. In particular, if the parties have not agreed on a time limit or the parties have agreed on an indefinite time limit, how long the pawnshop can last for at least 30 years, whether the pawnshop exercises the right of redemption and whether the pawnshop can obtain the ownership of the pawnshop depends entirely on the pawnshop, which is unaware of it. It can be seen that the uncertainty of static property relations caused by the traditional pawning right system has not been completely solved under the pawning right system established by the civil law of the Republic of China. It not only hinders the perfection of normative things, but also is unfavorable to social economy, and it is easy to breed disputes over dynamic property relations. As Mr. Pan Weihe, a scholar in Taiwan Province, said: "Pawn right is a unique system with a long history in China's inherent legal system, and redemption right is the characteristic of Pawn right. The right of redemption makes it possible to deny whether there are two situations: the former is limited to redemption and the latter is easy to get involved. "

(3) looking for a job. Looking for a sticker, that is, during the existence of the pawnbroker, the pawnbroker said that he would transfer the ownership of the pawnbroker to the pawnbroker, and the pawnbroker found the deficiency beyond the sticker price on time and obtained the ownership of the pawnbroker. According to the previous regulations of the Qing Dynasty and the relevant laws of past dynasties, disputes arising from job hunting can be divided into three types: one is disputes arising from unlimited job hunting time. According to the previous law, the pawnshop can ask the pawnbroker to find a sticker at any time during the existence of the pawnshop and after the expiration of the pawnshop's term, and even after many years and generations, it can still ask for a sticker. Over time, it is inevitable that the evidence will be lost or the parties will die, and it is difficult to determine whether to find a job or not, and the resulting disputes are difficult to solve. Second, disputes arise because of too many postings. According to folklore, you can find a post many times, once, twice or even three or four times. Moreover, every time you find a post, you can't be absolute, which inevitably makes the relationship between pawning rights more and more complicated, which leads to disputes that are difficult to solve. Third, because the number of posts found is controversial. In the past, the posting amount was estimated by the middleman, and disputes often occurred because the middleman was partial to one side and the posting amount was unfair. In order to avoid the above disputes, the Civil Law of the Republic of China clearly stipulates the time to find posts. The pawning right with a fixed term is discovered within two years after the expiration of the term, and the pawning right without a fixed term is discovered within thirty years after its publication. It is clearly stipulated that the number of times to find posts is limited to one time. After finding posts once, the pawning right will be destroyed. There is also a clear standard for judging the amount posted-the pawnbroker finds the shortage beyond the standard price on time, that is, the price of the goods in the market MINUS the original standard price. The above regulations seem to be GAI, but there are still many controversies because of the number of positions. "The current price of things" itself is an uncertain concept, because every piece of land and every house has its own characteristics because of its different location, quality and quantity. According to the general market situation, a reasonable conclusion may not be drawn; Moreover, the pawnbroker's request for stickers was made when he could not or did not need to recover the pawnbroker's original price. The pawnbroker's current price is indeed higher than the original price. The pawnbroker grasped the psychology that the pawnbroker urgently needed him to bid to stay and buy; Will do everything possible to find the number of posts, it is difficult for both sides to reach an agreement on the number of posts. Scholars in Taiwan Province Province said: "How many posts to find is easy to cause disputes."

(4) From the perspective of the transfer relationship, when the pawnbroker transfers the pawnbroker, the pawnbroker can claim to redeem his pawnbroker at the expiration of the pawnbroker's term. There are five theoretical explanations for who should be redeemed. First, since the pawnshop has transferred the pawnbroker to the pawnshop, the right of redemption is the subordinate right of the pawnshop's ownership. When the pawnshop redeems the pawned property, it shall directly transfer it to the pawnshop. Second, although the pawnshop has transferred the pawnbroker to the pawnshop, its pawn relationship still exists, and the pawnshop should redeem the pawnbroker from the original pawnshop. Third, pawn shops can redeem pawn shops or pawn shops. Fourth, when the pawn was transferred to the pawn shop, it should have been redeemed from the original pawn shop, but when the original pawn shop was too lazy to redeem the pawn shop, it could also be redeemed directly from the transferred pawn shop. Fifthly, when the pawn was transferred to pawn code, the pawn relationship had not been eliminated, and the pawnbroker and pawnbroker's interests were affected by the pawnbroker's redemption, which should be completed by the pawnbroker and pawnbroker together. There is this difference in theory. "The opinions of precedent are not very consistent. In the year 18, the supreme court case 1000. 187 once said that the original pawnshop can be redeemed from the pawnshop as long as the original price is ready. No.3 1 year, case No.3043 and case No.3043 3 164, No.32, it said that the pawnbroker wanted to redeem the pawnbroker. Case 19 16 in the thirty-third year of the same hospital' Pawnshops should redeem pawnbrokers and pawnbrokers respectively. The difference in theoretical understanding and the inconsistency in the provisions of case law will inevitably lead to the conflict of interests among the original mortgagor, mortgagor and mortgagor in the case of the transfer of mortgagor. The traditional pawn system's unlimited provisions on redemption and posting reflect the excessive protection of pawn shops, which is prone to disputes and obviously unfair. Although the Civil Code of the Republic of China revised the ancient pawning right system in an attempt to avoid reducing disputes and fairly protect the due interests of both parties, it is still difficult to balance the interests of all parties.

(1) From the perspective of risk burden. When all or part of the losses of the pawnshop are caused by force majeure, the losses shall be shared by the pawnshop and the pawnbroker according to law, that is, the pawnshop and the redemption right shall be eliminated. This rule seems to be shared by both parties, but it is not. First, the extinguishment of pawning right is different from the extinguishment of homogeneous right, and the pledge right is subordinate to the right. The extinguishment of the pledge right does not affect the existence of creditor's rights, and the debtor still has the obligation to pay off; The pawnbroking right is the main right. When the pawnbroking right disappears, the pawnbroker has no obligation to return the pawnbroking price, and the pawnbroker cannot recover the pawnbroking price. In other words, the demise of pawnbroker means that pawnbroker pawnbroker pawnbroker pawnbroker pawnbroker pawnbroker pawnbroker pawnbroker pawnbroker pawnbroker. When the foreclosure is extinguished, the pawnbroker can't take back the pawnbroker's pawnbroker, but he doesn't have to return the pawnbroker's pawn price. If the standard price is close to the selling price, then keeping the standard price close to the selling price will lose the ownership of the standard product, just like selling the standard product to the pawnbroker; If the pawn property depreciates after the establishment of pawning right, and the actual value of the pawn property is lower than the pawn price, then the pawnbroker loses the right of redemption due to force majeure, just as he gave up the right of redemption when the value of the pawn property drops, he will not suffer any losses. Even when the standard price is lower than the actual value of the standard object, the pawnbroker can keep the standard price to the maximum without loss. Therefore, the risk liability for the loss of the subject matter due to force majeure shall be borne by the pawnbroker alone, not by both parties. Second, although the pawnshop enjoys the right to possess, use and benefit from the pawnshop, it does not enjoy the ownership, and the ownership still belongs to the pawnshop. According to the law, the risk liability for the loss of the subject matter caused by force majeure shall be borne by the owner. Under the pawnbroking system, the risk responsibility is transferred from the owner to the non-owner, which is not only illegal, but also harmful to the pawnbroker's interests, resulting in obvious unfairness to both pawnbroker and pawnbroker.

(2) From the perspective of redemption. The right of redemption is the right of the pawnbroker to redeem the pawnbroker at the original price during the redemption period, and to eliminate the pawnbroker when the expression of will takes effect. It can be seen that the nature of the right of redemption has two aspects: first, the right of redemption is a right to the pawnshop. After the pawnshop has set up a pawnshop, the pawnshop has no obligation to redeem the pawnshop at the original price and has full freedom to choose whether to redeem the pawnshop; For the pawnbroker, redemption is an obligation. After the expiration of the pawn period or within the pawn period, the pawnshop has no right to demand redemption from the pawnshop. Pawnshops shall not resist redemption if they demand it. Second, the right of redemption is the right of formation. Pawnshops do not need the consent of the classic owner to exercise the right of redemption. As long as he puts forward the standard price, it means that pawnbrokers are redeemed, that is, the effectiveness of exercising the right of redemption occurs and pawnbrokers are eliminated. In view of the above two attributes of the right of redemption, when the pawnbroker's value decreases, the pawnbroker can either have the ability of redemption or give up the right of redemption without burden; When the pawnbroker's value rises, if the pawnbroker is able or unable to raise funds, he can redeem the pawnbroker at the original price and sell it at a higher price, or he is really unable to redeem it, and has the right to find a post for the part where the actual price of the pawnbroker exceeds the original price. In short, the pawnbroker is always in an active and favorable position, while the pawnbroker is in a passive position and has no corresponding right to protect his own interests. First, the pawnshop has no right to intervene and ask when the pawnshop will redeem it. Although the law gives him the right to use, benefit and improve the pawnbroker during his possession, as long as the pawnbroker redeems the pawnbroker at the original price, he will unconditionally restore the pawnbroker. Second, when the price of the pawnshop drops, the pawnshop can give up the right to recover the pawnshop at the original price without any burden or loss. This is actually the risk of marrying a pawnbroker and devaluing for some reason during the pawn period-a pawnbroker who pays a certain amount to solve his urgent needs in life or production. When the pawnbroker's value rises, the pawnbroker can redeem it at the original price. When he is unable to redeem it, he can ask the pawnbroker to find a post, and the pawnbroker will pay the part whose current price is higher than the original price as the consideration for giving up the right of redemption, regardless of whether the pawnbroker has experienced the depreciation of the pawnbroker during his possession of the pawnbroker or whether he has suffered losses due to the depreciation of the pawnbroker. In fact, this is to completely attribute the proceeds of Canon's natural appreciation to pawnbrokers. It is the spirit of the principle of fairness to enjoy benefits and take risks. It is indeed against fairness to attribute benefits to one party and risks to the other.

(3) From the perspective of tax payment. According to the land law, land tax should be paid by the owner. However, under the pawn system, all kinds of taxes that should be collected from the owner according to the land law are collected from the pawnbroker after the pawnbroker pawns, regardless of whether the pawnbroker redeems them. The pawnbroker should not only bear the risk responsibility of accidental loss and depreciation of the subject matter instead of the owner, but also bear the tax liability instead of the owner. The degree of unfairness is obvious. The original intention of the pawnbroker system is that the pawnbroker is in urgent need of money because of economic distress, and transfers his land and house to others for possession, use and income, and obtains money at the cost price or strictly speaking as a guarantee to solve his urgent needs. So it was called the combination of canon and quality in ancient times; Modern scholars also define pawning right as security interest; The Civil Law of the Republic of China arranges the pawning right between the pledge right and the mortgage right. Therefore, the pawnbroker redeems the pawnbroker at the original price, in fact, in order to pay off the debt and get back his own property. There is indeed a relationship between the pawnbroker and the pawnbroker. At present, one of the biggest social problems in China is the triangular debt, and the serial debt cannot be paid off in time, which seriously affects the normal operation of the whole social economy. Therefore, the focus of legal research and legislation should be how to ensure the timely realization of creditor's rights, the interests of creditors are not harmed, and the security of dynamic property relations is not threatened. The pawnbroking system protects the interests of the debtor-pawnbroker too much, but ignores the legitimate interests of the creditor-pawnbroker, and even reaches an obviously unfair level. In the old China where the law of the jungle prevails, it can be said that it is the embodiment of traditional virtues to protect the weak, help the weak and help the poor. However, today, the legal system that increases the burden on creditors and overprotects the interests of debtors is hardly the best system. The Civil Law of the Republic of China lists the pawning right between the pledge right and the mortgage right, which shows that the civil law regards the pawning right as a security interest. However, scholars hold different views on the nature of pawning right. There are three main theories:

(A) usufructuary right theory

The theory holds that pawning right is usufructuary right. The main reasons are as follows: First, Article 9 1 1 of the Civil Code clearly defines pawning right as usufructuary right, and the legislative interpretation has the same interpretation. Although it was once regarded as a security interest in the legal evolution of China, the civil code listed the pawning right between the pledge right and the mortgage right, but this is another problem, and it cannot be considered as a security interest. Second, the inscription has two meanings. One is pawn, which is based on loan and belongs to the nature of security interest; One is the buying and selling of code, which has the same legal relationship as buying and selling and has no guarantee nature. Today's pawning right system evolved from the latter and belongs to the nature of usufructuary right. Third, the security interest must have creditor's rights, and the pawn pays the pawn price to the pawn, which is not the establishment of creditor's rights. Fourth, the pawning right is the principal property right, not the subordinate property right, and its right itself always exists because of the relationship between things, while the security property right must be subordinate to the creditor's right. Fifth, if the pawnbroking right is abandoned by the pawnbroking person, the pawnbroking right relationship will be eliminated, and the pawnbroking person will not be responsible for the part of the pawnbroking value lower than the pawn price, but the security interest will not be eliminated due to breach of contract, and the debtor will still be responsible for the insufficient collateral.

(B) the theory of real right guarantee

This view holds that the pawning right is one of the security interests. The reasons are as follows: First, the civil law lists the pawning right between the pledge right and the mortgage right, and the law regards it as the security interest. Second, the pawning right is mostly due to the financing of pawn shops, which use pawn shops as the guarantee of loans. Third, there is no strict distinction between canon and quality in the evolution of the legal system. Fourthly, if the pawnbroking right is a usufructuary right, and the pawnbroking person takes the pawn price as the consideration for setting the pawnbroking right, then the pawnbroking right should not have the obligation to return the consideration when it disappears. Therefore, the pawnshop's redemption of the pawnshop at the original price actually has the nature of paying off debts.

(C) the theory of special property rights

The theory holds that pawning right is a special property right, which has the nature of security right and usufructuary right. The main reasons are as follows: first, although the pawnbroking right has efficiency and benefits, it is not its main purpose, and its ultimate goal is to obtain its ownership by the pawnbroking person. If the provisions of the law on pawn shops have the words "use income", it cannot be regarded as usufructuary right. Second, although the pawning right has the function of guarantee, it is not a purely broken real right for security. Because the security interest is a subordinate right, it must be based on the existence of the main right, while the pawning right is not, so the pawning right is different from the pure security interest such as mortgage. It can be seen that pawning right is neither a purely broken usufructuary right nor a purely broken security right, but a special property right with dual nature. Some scholars in Chinese mainland also believe that pawning right is a useful security interest with real estate as the target.