摘要： 《民法典担保制度解释》第46条看似采纳了违约责任的通说,实与担保责任杂糅。违约责任说着眼于抵押登记的单一效果,不仅导致意思表示解释方法失当,且忽视了其理论构造对担保责任的吸收。不动产抵押合同包含担保合意与登记合意,分别产生担保责任与抵押登记请求权,前者具有的以特定财产担保债务履行之效果,才是其担保功能所在,随之带来了违约责任说所欠缺的效率优势。此种担保效果本质上系债权担保,但责任财产限于特定不动产,非典型保证说混淆了人保与物保的基本界限,因而应定性为“特定财产+债权担保”之非典型担保。作为类型融合合同的不动产抵押合同,经《民法典》第467条第1款的准用,得分别参照适用保证合同与生效创设担保物权合同的规范,从而产生“变价权+受偿权”的效果。

关键词: 不动产抵押合同, 抵押登记, 担保功能, 非典型担保, 参照适用

Abstract: Article 46 of The Supreme People's Court's Interpretation of the Security System of theCivil Code seems to adopt the general theory of the liability for breach of contract, but it is actually a combination of the security liability.The theory of liability for breach of contract focuses on the single effect of mortgage registration, which not only leads to the improper interpretation of expression of intention, but also neglects the absorption of security liability in its theoretical structure.The real estate mortgage contract includes the security agreement and the registration agreement, which produce the security liability and the mortgage registration right respectively.The effect of the former is the security function.This brings the efficiency advantage that the theory of liability for breach of contract lacks.The effect of such a security is essentially a security of creditor's rights, but the liability property is limited to specific real property, and the non-typical guarantee theory confuses the basic boundary between personal and proprietary security, therefore, the nature of the “specific property+creditor's rights security” of the atypical security.By reference to article 467 paragraph 1 of the Civil Code, the real estate mortgage contract, as a type fusion contract, may refer respectively to the norms applicable to the guarantee contract and the contract of direct creation of security interests, so as to have the legal effect of right to realization and compensation.

Key words: Real Estate Mortgage Contract, Mortgage Registration, Security Function, Atypical Security, Applicable by Referenc