主合同无效后担保权存续论

从属性更恰当的表达是担保权从属于主债权,而非担保合同从属于主合同。尊重这一前提,通过类推适用主合同解除后担保权存续之逻辑、基于实证法上的个别示例以及受比较法的启发,主合同无效后担保权在返还清算关系中原则上应存续,但该存续应尊重保证人及物上担保人享有的期限利益以及诚信原则。担保权主要是在债权人先履行时,为防止债务人届期清偿不能而予以设立的,主合同无效并不消灭这一风险,无效宣告后债务人的返还义务替代其合同债务,为防范该风险而设立的担保权也应存续,这也符合当事人缔约时之意思。主合同无效后担保权存续主要适用于债务人一方返还的情形。

The Survival of the Security Interests after the Nullification of the Principal Contracts

It’s improper to hold that the security contract is secondary to the principal contract. In fact, it is the security interest that is secondary to the principal claims. With this premise, it can be concluded through analogy that the security interests still survive in liquidation and restitution after the nullification of the principal contract. Such a conclusion can also be made from the insights gained from the comparative law practice and from empirical cases. Admittedly, the survival of security interests after the nullification should still follow the bona fide principle and respect the term of time limit in the interest of the surety. In fact, security interests are created to protect the creditor from the debtor’s failure to make full payments within the time limit in the case of the creditor’s performance first. Such a risk is not eliminated with the nullification of the principal contract. Due to the nullification, the contractual obligation will be replaced by the debtor’s obligations of restitution of and compensation for damages. Therefore, the security interests created to prevent such risks should also survive, which complies with the intentions of both parties at the time of entering the contract. Of course, the survival of the security interests after the nullification of the principal contract mainly applies to the situation where only the debtor assumes the obligation of restitution.