Point of View... The (V) of the rules of the mortgage period.

Published:

2022-02-23

4. interpretation of "no (to) support" and "no protection" Sort out the existing laws and regulations, from "support" as stated in the Interpretation of the Guarantee Law to "no protection" as stated in the Property Law to "support" as stated in the Minutes of the Meeting to "no protection" as stated in the Civil Code to "no support" as stated in the Interpretation of the Guarantee Law System ". In the author's opinion, the meaning of "not (to) support" and "not to protect" are not exactly the same, the former refers to the conclusion of not (to) support the mortgagee's claim; the latter, in addition to the meaning of "not (to) support", may also include the annihilation of the mortgage (the annihilation of the mortgage), the annihilation of the right of victory (the annihilation of the right of victory), the occurrence of the right of defense (the occurrence of the right of defense) and so on. In this regard, it is necessary to clarify the similarities and differences between the existing main doctrines arising from "non-protection. 1. The mortgage is extinguished. Scholars who agree with this theory believe that, unlike the Schrodinger's cat principle, the fact of high probability can be assumed by absolute assumption that the inevitable event is the expiration of the mortgage period, the mortgagee must invoke the statute of limitations defense to claim the elimination of the mortgage and then request the cancellation of the mortgage registration. For this reason, it is beneficial to make the best use of things, to play the value purpose of circulation efficiency and balance of interests, and to reduce the negative effects of norms. The summary of the judgment of "Wang Jun v. Li Rui Mortgage Contract Dispute" published in the 7th issue of the Bulletin of the Supreme People's Court in 2017 (No. 249 in total) clearly states that the consequence of the statute of limitations is the elimination of the mortgage right rather than the loss of the right to win. The author thinks that, combined with the principle of "from the main" image, the theory does not reasonably explain why the real creditor's rights of the time limit have not been eliminated but the mortgage right has been eliminated, and the defects are more obvious. 2. The elimination of the right to win a lawsuit (also known as the loss of execution). The elimination of the right of victory originated from the Soviet Union is a reflection of the old general theory on the issue during the exercise of the mortgage right. The essence of its emergence lies in allowing and requiring judges to invoke and review the expiration, suspension and interruption of the statute of limitations ex officio. Since its quotation, it has been criticized by most scholars as "contradiction between self-concept and logic" and "victory" falling into the "straw man fallacy" in logic on the "objective effect. With the introduction of the concept of private autonomy into the statute of limitations system in Article 3 of the statute of limitations, the doctrine has lost its own basis of existence and has been gradually dispelled and replaced by the doctrine of "the occurrence of the right of defense. 3 the right of defense occurs. Influenced by German legislation and the writings of Taiwan, the existing scholars and practitioners in the domain agree with the view that the right of defense occurs. As far as the author can see, Articles 1 to 3, 5, 18 to 19 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of the Limitation of Action System in Hearing Civil Cases promulgated by the Supreme People's Court in 2020 use the word "defense" in 12 places. Articles 20 and 419 of the Civil Code also indirectly reflect the right of the mortgagor to invoke the defense of the principal debt limitation according to the interpretation of the text; the introduction of the Interpretation of the Guarantee System also adopts the view of "the occurrence of the right of defense. In summary, the author believes that the existing legislation and judicial interpretation of the doctrine may be based on the following reasons: First, in the context of the current law, the law does not completely stifle the possibility of the mortgagor to realize his rights, and "non-protection" should not be equated with the "elimination" of the mortgage as mentioned in Article 393 of the Civil Code, that is, "non-protection" should not be interpreted as the natural result of the statute of limitations, but rather the effect of the mortgagor invoking the right of defense of limitation. Second, the doctrine simply and clearly explains the situation of rights and obligations between the right holder and the obligor after the statute of limitations by means of the antagonism between the right of claim and the right of defense. Unlike other doctrines, this theory does not go to extremes and does not re-create new legal concepts outside the existing legal framework system, ensuring conceptual homogeneity while reflecting the integrity of the legal system. Moreover, the "occurrence of the right of defense", which specifically refers to the "substantive right of defense", can effectively link up the relevant provisions of the procedural law (such as Article 371 of the Interpretation of the Civil Procedure Law), that is, the court shall not take the initiative to invoke and review the statute of limitations on the premise that the parties do not claim the right of defense of the statute of limitations. Third, the obvious flaws in the theory of annihilation of mortgage, the loss of the basis of its own existence, the understanding of the effect of rights as "incomplete defense" and the natural "private autonomy" publicity effect of the theory of defense, lead to the theory being able to cater to the general environment on the basis of criticism and elimination of other theories, and eventually become a "popular" theory in academic circles and even in judicial practice. The extended interpretation of the period during which the 5. mortgage is exercised. (I) Extension Interpretation I-Article 390 of the Civil Code During the life of the mortgage, on the premise that the secured property is not bound by the parties' intention, the existing rights in rem naturally extend to the "security substitute", which includes the application of the rules during the exercise of the mortgage. What is a "guaranteed substitute"? The author believes that it mainly contains two meanings. The first meaning is the "three gold" stipulated in the law, namely compensation, insurance and compensation. The second meaning is the "etc" mentioned after the "three gold" in the law. As for "etc", the academic circles are divided into two camps. The first camp believes that "guarantee substitute" not only includes the relative elimination of "collateral transfer price", that is, the guarantee is sold, it also includes "all proceeds derived from the mortgaged property", I .e. absolute extinction, including but not limited to fruits, additions, important ingredients, etc. The second camp believes that "security substitutes" only include substitutes formed under the condition of absolute elimination. It believes that the retroactive effect of mortgage right under the condition of "relative elimination" can not only claim to return the mortgaged property to the transferee and realize the mortgage right, but also require to recover the proceeds from the transfer of mortgage property, which has the disadvantages of overlapping beds and overprotecting the mortgagee's suspicion. The author believes that the existing mainstream theory that "etc." is limited to absolute elimination mainly lies in the fact that the physical form of real estate has changed less. At the beginning of the establishment of the security right system, "real estate (value is far greater than movable property)" is at the core, and the wanton expansion of the scope of application of the rule of substitution on the security substitute will ignore the existing legal norms and systems. In addition, based on the principle of "from the master" image, the mortgaged real estate (or movable property) is destroyed, lost or expropriated during the life of the mortgage, and the period rule should automatically apply to the "three gold" until the secured claim is extinguished. However, two major problems arise from this: first, how to deal with the mixing of money after the "three gold" is deposited into the special account designated by the mortgagee? In my opinion, although the mixing of the "three gold" and the money already in the account loses its specificity, the creditor obtains the deposit claim on the bank that opened the account. Since the original security interest cannot be extended to currency, but can be extended to deposit claims, as long as the account balance exceeds the "three gold" and the resulting interest, it can be assumed that the "security substitute" always exists in the mixed account for the withdrawal of the claim "? Even if the" mortgaged property "is transformed into" three gold "due to damage, loss, etc., it is still the same as the" limitation period for execution of the main claim "as described in section III of Part II of this article. (II) Extension Interpretation II-Article 1998 of the Civil Code In order to prevent the mortgagee's mortgage from causing the value of the mortgage to be impaired, the clause gives the mortgagee two remedies: first, to request the mortgagee to cease the act that caused the mortgage to be impaired and to restore the value of the mortgaged property; and second, to require the mortgagee to provide security corresponding to the reduced value. Of course, in judicial practice, the mortgagor may refuse to restore the value of the mortgaged property or provide security, at which point the creditor may request the debtor to pay off the debt in advance. Through this clause, it will also be found that "requiring the mortgagor to provide a guarantee corresponding to the reduced value" includes four situations: the first and (II) situation is that the original mortgage is real estate (movable property), and the rear mortgage is also real estate (movable property); The third situation is that the original mortgage is real estate and the rear mortgage is movable property; the fourth situation is that the original mortgage is movable property and the rear mortgage is real estate. Whether the original mortgage is real estate (or movable property) or the post-mortgage is movable property (or immovable property), the principle of "following the master" image shall be followed (with exceptions, see below). The period of exercise of the mortgage right is applicable to the suspension, interruption and extension of the limitation of action and execution of the limitation of the main creditor's right, but corresponding problems will also arise. For the convenience of understanding, the following is illustrated by way of examples. Example: A borrowed 1 million yuan from B on October 1, 2021 for a period of one year. Both parties agreed to repay the principal on October 2, 2022. A mortgaged the real estate A (or movable property A, which is not repeated below) under his name to B. Situation 1 is that when the debt performance period expires, A fails to repay the debt and damages the real estate A on December 2, 2022, resulting in the value of the real estate falling from the original 1 million to 800000 yuan. B discovers on December 12 of the same year and requires A to provide a guarantee corresponding to the reduced value. A mortgages the real estate B under his name to B the next day; case 2 (ibid.) B did not claim its own creditor's rights to the court before October 2, 2025 but found that the original real estate A was damaged, and immediately requested A to provide a guarantee corresponding to the reduced value. A mortgaged the real estate B with a value of 200000 yuan under its name to B on October 3, 2025. In summary, in case one, when B claims the right to provide a mortgage again to A within the statute of limitations (the same applies to the execution of the statute of limitations), the statute of limitations is interrupted and re-calculated, at this time, the claim of 800000 yuan secured by the original mortgage and the claim of 200000 yuan secured by the post-mortgage (the front and back claims should be regarded as a whole) are calculated again for three years from the time of registration of the real estate mortgage (or when the movable property mortgage contract comes into effect), and there is no objection to this. If the creditor does not claim to exercise the claim or mortgage during the limitation period of the claim, but A sets up a "secondary" mortgage for B during the "natural" period of the mortgage, is it necessary to clarify the period during which the mortgage is exercised? In case 2, the creditor's right of 800000 yuan was reduced to "natural debt" due to exceeding the limitation period of action, thus the exercise of the original mortgage lost the legal compulsory protection. As for the 200000 yuan creditor's right becoming a "natural debt", it is indisputable that Party A provides the corresponding guarantee again, which means that Party A voluntarily performs the 200000 yuan's debt, thus giving rise to a question, is there still a problem during the exercise of mortgage? For the above two cases, the existing law does not give clear provisions. In my opinion, in order to strike a balance of interests between the utility of collateral circulation and judicial efficiency, as well as between creditors and mortgagors, legislation should clarify the period of exercise of the mortgage corresponding to the "secondary" mortgage, rather than being confined to the principle of "following the master" across the board, but breaking through the existing legal framework to make special provisions, that is, to clarify the period of exercise of the mortgage of the "secondary" mortgage. 6. epilogue The "point-to-point" period expression draws a clearer line between the mortgage period and the legal terms related to it, so that the exclusion period, statute of limitations, etc. cannot be treated "equally" with the mortgage period. Combing the legislative history of the mortgage period will still find that the legislative guidelines of different countries in different periods affect the meaning, characteristics and even the definition of the nature of the mortgage in China, and to this day, the rules of the period of the exercise of the mortgage are still looking for a position in line with China's national conditions in the judgment and theoretical disputes. The unique "dual model" makes the application of the period more complicated, and the differences in legislative terms also make the theory of the period of exclusion, from the attribute, the elimination of the right to win the case and so on. The application of the period rule shall extend to the "security substitute" obtained after the loss, destruction (or expropriation, etc.) of the mortgaged real estate (or movable property) ". Of course, the legislation should also clarify the rules for the exercise of the "secondary" mortgage period based on the impairment of the value of the collateral, rather than calculating the "mortgage exercise period" within the existing legal framework system based on existing laws and regulations ". 7. reference works [1] Wang Liming, Civil Law, Renmin University of China Press, 2020; [2] Wei Zhenying: "Civil Law", Peking University Press, 2017; [3] Wang Liming, Research on Property Law (Volume II), Renmin University of China Press, 2013; [4] Zipelius: Methodology of Law, translated by Jin Zhenbao, Beijing Law Press, 2009; [5] Wang Shengming, Editor-in-Chief: "Interpretation of the People's Republic of China Property Law", Law Press, 2007, pp. 436-437; [6] Huang Pine has: 《<中华人民共和国物权法>Interpretation and Application of Provisions, People's Court Press, 2002, p. 603. 8. References [1] Zhuang Jiayuan, "Implied Extension of Security Rights in Movable Property", Legal Studies, No. 2, 2021, p. 39; [2] Yang Wei, "The Connection between the Exercise of Mortgage and the Limitation of Action for Principal Claims-From the Perspective of Article 419 of the Civil Code and the New Provisions of Judicial Interpretation", Northern Law, No. 6, 2021; [3] Lin Wenxue, Yang Yongqing, Ma Jinliang, Wu Guangrong: 《<关于适用民法典有关担保制度的解释>Understanding and Application of the People's Justice, No. 4, 2021, p. 40; [4] Luo Shuai, "Interpretation of the Rules of Mortgage Period under Skopos Theory-Centered on Article 419 of the Civil Code", Journal of Shandong University (Philosophy and Social Sciences), No. 6, 2020, p. 85; [5] The Second Civil Trial Division of the Supreme People's Court, ed: 《<全国法院民商事审判工作会议纪要>Understanding and Application, People's Court Press, 2019, p. 361; [6] Huo Haihong: "Name" and "Reality" of the Elimination of the Right to Win a Case, Chinese and Foreign Law, No. 2, 2012, p. 351; [7] Gao Shengping, "Study on the Period of Exercise of Security Rights", Journal of East China University of Political Science and Law, No. 1, 2009; [8] Xu Mingyue: "Legislative deficiencies in the collateral transfer system and its judicial interpretation remedies-Review<中华人民共和国物权法>Article 191, Law and Business Research, No. 2, 2008, p. 146; [9] Sun Peng, "On the Period of Implementation of Security Interests", in Modern Law, No. 6, 2007, pp. 85-87; [10] Wen Shiyang and Liao Huanguo: "On the co-accommodation of the superior subrogation of the mortgage right and the power of the object", Law, No. 6, 2001, p. 51; [11] Zhao Jia, "An Analysis of the Duration of Mortgage Rights and Related Issues-A Commentary on Article 59 of the Ninth Minute", in the 30th Series of the Judicial Reform Review. 9. reference case [1] Han Xiaolan and Tang Zuoyin's Civil Ruling Letter on Retrial Review and Trial Supervision of the Application for Execution of Objection by Executors [(2021) Supreme Law Minshen No. 1134]; [2] Liu Wei and Zhongjing Xin Investment Co., Ltd. and other mortgage contract disputes second-instance civil judgment [(2016) Jing 03 Min Zhong No. 9567]; [3] Sales Contract between Dongguan Cihua Stationery Products Co., Ltd. and China Minmetals Shenzhen Import and Export Co., Ltd. and Longyan Hongyu Trading Co., Ltd.</中华人民共和国物权法></全国法院民商事审判工作会议纪要></关于适用民法典有关担保制度的解释></中华人民共和国物权法>

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