论英美担保法中的负担概念

负担,是对附属于某种财产、目的在于确保偿付债务或履行义务的一类责任的总称。负担包括了抵押权、质权和许多没有特别名称的担保权。负担既不取决于财产的交付,也不取决于所有权的转移,而是代表了债权人与债务人之间达成的一项协议。英美担保法中的负担与担保(security)、(不转移财产所有权的)抵押权或担保权(hypothec)、留置权(lien)、抵押(mortgage)均存在重要的区别。对floatingcharge,应当采用"浮动负担"的说法,以凸显该制度为英美法系所独有的特色;而对charge,则应径称之为"负担"。

On Charge in Anglo-American Security Law

Charge is an encumbrance to be satisfied out of particular property,which is intended to ensure the accomplishment of duties such as liabilities or obligations.Charge consists of mortgage,pledge and other security rights that are not specially designated.It is neither decided by delivery of property nor by transfer of ownership,but only represents an agreement reached between the creditor and the debtor.In Anglo-American law,charge differs a great deal with security,guarantee without transfer of ownership or hypothec,lien,and mortgage.As for the term "floating charge," it should be translated as "浮动负担" by way of foreignization so as to maintain its unique alien features of common law;the term "charge" should also be translated as "负担" for the same reason.