流质条款制度最早起源于罗马法，但基于当时的社会经济环境，得到广泛运用的流质条款带来了许多造成债务人利益受损的社会不公平现象，因此在法律中被明令禁止。罗马法关于流质禁令的传统也被以法国为首的大陆法系等国家延续下来，我国也在《担保法》和《物权法》中明确规定当事人不得约定流质。禁止流质的理由一般包括会造成债务人于债权人之间利益失衡、不符合担保物权的价值权属性、保护其他债权人的利益等。但时至今日，市场经济快速发展，相关法律法规日趋完善，民商事主体的地位发生深刻转变，流质禁令所依赖的社会背景已经消失，当今社会的民商事主体出于对经济利益和效率的追求，迫切渴望流质效力的发挥，且传统担保物权实现程序存在效率低下、成本高昂的明显缺陷，在此种情况下再对流质条款进行严格限制不仅会损伤私法自治的积极性，也会挫伤非典型担保制度的独立性。或许是出于同样的考量，国际法上诸多国家也已经逐渐放开的对流质的限制，同时在相关制度上进行了合理的设计，诸如清算制度、登记对抗公示等，试图使流质在实际运用中更加公平正义，这也为我国考虑进一步放开流质提供了很好的借鉴。

我国《民法典》于2021年生效，针对流质条款的规定设置在第401条与第428条，与以往“当事人不得约定”的表述不同，立法者采用了“只能依法就抵押/质押财产优先受偿”的新型表述，毋庸置疑，《民法典》对于流质条款的创造性表述确实为进一步探讨解禁流质提供了更多可能，但仅仅只有两个条文，缺少相配套的司法解释或指导性案例对流质制度进一步阐明，对于流质的效力、认定标准、实现程序等却缺少进一步规定，这些法律漏洞的存在给学术界与实务界引发了不小的争议与困难。出现以上问题主要是因为立法者保守的观念与流质条款背后的价值仍然存在矛盾冲突，立法者观念转变不彻底，条文设置不清晰，产生的法律漏洞就亟待填补。

第一部分首先对流质条款的总体概念进行厘清，从流质条款的概念、渊源和特征出发，结合流质条款解禁与否的争议进行基础性建构；第二部分主要针对现行《民法典》对流质条款的规定中存在的问题和反思展开，详细从立法缺陷、司法适用问题进行展开，另外具体阐述解禁流质条款的价值意义，体现其必要性；第三部分展开比较法上对流质的相关规定，具体分为禁止主义与允许主义论述，之后概括总结从各国立法措施中可以借鉴的代表性经验并分析其可行性；第四部分最后提出针对我国现状的流质制度完善建议，以完善流质的效力体系与实现程序为两个出发点具体展开，另外建议进一步完备具体法律制度——出台相关司法解释与指导性案例。

The system of liquid terms originated from Roman law, but based on the social and economic environment at that time, the widely used liquid terms brought about many social inequalities that caused damage to the interests of debtors, and were therefore explicitly prohibited in the law. The tradition of the ban on liquid in Roman law has also been continued by countries such as the continental legal system led by France. China has also explicitly stipulated in the Guarantee Law and the Property Law that the parties cannot agree on liquid. The reasons for prohibiting liquid quality generally include causing an imbalance of interests between the debtor and creditors, not meeting the value rights attributes of the security right, and protecting the interests of other creditors. But to this day, with the rapid development of the market economy and the increasing perfection of relevant laws and regulations, the status of civil and commercial subjects has undergone a profound transformation, and the social background on which the ban on liquid substances has disappeared. In today's society, civil and commercial subjects urgently desire the effectiveness of liquid substances in pursuit of economic interests and efficiency, and the traditional procedures for realizing security rights have obvious shortcomings such as low efficiency and high cost, Strict restrictions on the liquidity clause in this situation will not only undermine the initiative of private law autonomy, but also undermine the independence of the atypical guarantee system. Perhaps due to the same considerations, many countries in international law have gradually relaxed their restrictions on liquid substances, and have made reasonable designs in related systems, such as liquidation systems, registration and public disclosure, in an attempt to make liquid substances more fair and just in practical use. This also provides a good reference for China to consider further liberalizing liquid substances.

The Civil Code of our country came into effect in 2021, and the provisions on the provisions of the liquid clause were set in Articles 401 and 428. Unlike the previous expression of "the parties shall not agree", legislators have adopted a new expression of "priority compensation can only be obtained for mortgaged/pledged property in accordance with the law". Undoubtedly, the creative expression of the liquid clause in the Civil Code has indeed provided more possibilities for further exploration of the lifting of the ban on liquid clause. However, there are only two articles, and there is a lack of matching judicial interpretations or guiding cases to further clarify the liquid system. There is a lack of further provisions on the effectiveness, recognition standards, implementation procedures, and other aspects of the liquid clause. The existence of these legal loopholes has caused considerable controversy and difficulties in the academic and practical circles. The main reason for the above problems is that there is still a contradiction and conflict between the conservative ideas of legislators and the value behind the liquid clause. The change of legislators' ideas is not thorough, and the setting of clauses is not clear, resulting in urgent legal loopholes that need to be filled.

The first part first clarifies the overall concept of the liquid clause, starting from the concept, origin, and characteristics of the liquid clause, and combining with the controversy over whether the liquid clause is lifted or not to construct a basic framework; The second part mainly focuses on the problems and reflections in the current provisions of the Civil Code on the provisions of the liquid clause, and elaborates in detail on legislative defects and judicial application issues. In addition, it specifically elaborates on the value and significance of the lifting of the ban on liquid clauses, reflecting their necessity; The third part discusses the relevant provisions on fluid quality in comparative law, specifically divided into prohibitionism and permissionism. Afterwards, it summarizes representative experiences that can be learned from legislative measures in various countries and analyzes their feasibility; The fourth part finally proposes suggestions for improving the current situation of the fluid system in China, with two starting points of improving the effectiveness system and implementation procedures of the fluid system. In addition, it is suggested to further improve the specific legal system by introducing relevant judicial interpretations and guiding cases.