(IV) on the rules of mortgage period.

Published:

2022-02-22

The basic relationship between the period of exercise of the mortgage right of the 3. and the limitation of action and the limitation of execution of the main claim. The determination of the nature of the period during which the (I) mortgage is exercised. Combined with the adjudication approach and the theoretical controversy, the nature of the period during which the mortgage is exercised is divided into three main points of view: first, the statute of limitations. The doctrine holds that the mortgage and the main claim "co-existence and co-extinction", applicable to the provisions of the statute of limitations on suspension, interruption and extension, should not be eliminated by the statute of limitations of the main claim, but into a "naked right" to apply the "loss of the right to win the case" view. The second is said during the exclusion period. The study considers that the mortgage as a limited property right is different from the claim that mainly applies to the statute of limitations. The linkage does not mean that it is equally applicable and that the right should be extinguished at the end of the period. The doctrine holds that the mechanical attribution of the mortgage exercise period to the statute of limitations or the exclusion period is a logical error, and it can be regarded as a special period in combination with the existing civil law of our country (such as the "guarantee period" stipulated in Article 692 of the Civil Code). Whether this "special period" is an independent period (also called the judicial protection period) mainly includes two viewpoints, the first view is that the mortgage exercise period belongs to the independent period based on the limitation period of the main creditor's right, but it is calculated in parallel with the limitation period of the main creditor's right, that is, the two periods are calculated separately, and whether the periods affect each other is divided into two views, one view is that they do not affect each other, the other view is that they affect each other, and the latter is mostly recognized in judicial practice. The second view is that the period during which the mortgage is exercised does not belong to the period of independence, and that everything is the application of the image of "following the master" in judicial practice, and the author agrees with the second view. In addition, in conjunction with the above, the duration includes the period of exercise of the mortgage and the period of exclusion, and the two periods are side by side rather than inclusive, I .e., the period of exercise of the mortgage is not a period of exclusion, but another period classification that is side by side with the statute of limitations and the period of exclusion. The Effect of (II) "Dual Model" on the Period of Mortgage Exercise Combined with the "limitation of action" mentioned in Chapter 1, Part 9 of the Civil Code of China and the many amendments to the Civil Procedure Law and related judicial interpretations until now the "limitation of execution" mentioned in Article 246 of Chapter 20 (known as the dual model or dual pattern in academic circles), the limitation of execution has gradually changed from the period of procedural law to the period of protection of substantive rights, such as the suspension of limitation of execution and the interruption rules applicable to the suspension of limitation of limitation of litigation; in the enforcement procedure, the court may not, on its own initiative, invoke the provisions on the expiration of the limitation of execution. On this basis, we interpret the provisions of Article 44 of the Interpretation of the Guarantee System: 1. After the expiration of the statute of limitations for the principal claim, the people's court shall not support the mortgagee's claim to exercise the mortgage. The interpretation of this article is that the mortgagee shall exercise the mortgage within the limitation period of the main claim, and upon the expiration of the exercise, the main claim will lose the protection of the court's enforcement power. According to the principle of "following the master" image, the mortgage is also reduced to a "naked right" or a "natural right" and thus cannot be supported by the court. Of course, the rights enjoyed by the mortgagee died during the "first heavy" protection period, and did not transition to the "second heavy" protection period, which does not involve the application of the statute of limitations. 2. If the mortgagor claims not to be liable for security on the grounds that the statute of limitations for the principal claim has expired, the people's court shall support it. The interpretation of this article is to give the mortgagor the legal right to claim the "limitation defense" under the premise that the court may not invoke the expiration of the statute of limitations on its own initiative, but the question arises as to whether the mortgagor can claim the mortgage registration together or after the fact after claiming no liability for security. It is believed that although the expiration of the statute of limitations for the principal claim does not belong to one of the circumstances in which the security right is extinguished under Article 393 of the Civil Code, the Minutes of the Meeting clearly stipulates that the mortgagor may request the court to cancel the registration after the expiration of the statute of limitations for the principal claim, and the Interpretation of the Guarantee System does not provide for it again in order to prevent confusion in the application of legislation. In my opinion, the right of claim based on the "annihilation of mortgage" does not affect the application of the right of claim based on the "right of defense. 3. Before the expiration of the limitation period for the main claim, the creditor shall only bring an action against the debtor, after the judgment or mediation of the people's court. This article is interpreted to mean that even if the mortgagor is not listed as a defendant during the "first heavy" protection period, as long as the payment and confirmation claims are confirmed by the effective legal instrument and constitute the basis for execution, the transition to the "second heavy" protection period can be made. In short, if the payment content determined by the enforcement basis (payment order, fair creditor's rights instrument, judgment, mediation statement, decision confirming the mediation agreement, arbitral award, etc.) is clear and meets other conditions for the people's court to accept the enforcement case, the relevant provisions of the statute of limitations shall apply to the enforcement procedure. It should be noted that the report or complaint of the mortgagee requesting the protection of civil rights may not only cause the interruption of the statute of limitations, but the resulting fine or confiscation of property may also make the civil payment the subject of enforcement, but such payment may not become the mortgaged property in advance; or the administrative action initiated by the mortgagee on the basis of civil legal relationship constitutes the cause of the interruption of the statute of limitations, however, the administrative judgment does not take civil payment as the subject matter of enforcement and does not give rise to the issue of the time limit for transitional enforcement. 4. If the debtor fails to apply for enforcement within the period of application for enforcement, the people's court shall not support its claim to the mortgagor to exercise the mortgage right. The interpretation of this article is based on the general cause of the extinction of the debt and the principle of the "subordinate" image of the mortgage, which is extinguished by the extinction of the first paragraph of Article 557 of the Civil Code during the period of limitation of execution of the principal creditor's debt relationship. If the mortgagee fails to take any measures to be paid during the "second" protection period to extinguish the claim in whole or in part, the right will be reduced to a "naked right" because it has exceeded the time limit for enforcement ". In addition, the "application for enforcement" described in the provisions is not the only means for the right holder to claim rights, and should be understood in a broad sense, with the same effect also including the obligor's agreement to perform the obligation, the two parties to reach a settlement agreement and so on. Of course, the above-mentioned means are also the cause of the interruption of the execution of the statute of limitations, pending the elimination of the interruption of the resumption of the execution of the statute of limitations and the execution of the statute of limitations has not expired, the mortgage is still in the "second" period of protection. Applicable circumstances during the exercise of (III) mortgage Judicial practice cases and theoretical disputes are like "a treasure house of knowledge for discovering, analyzing and solving problems", and this section hopes to list the applicable circumstances during the exercise of existing mortgages in conjunction with the provisions of relevant laws and regulations. 1. The "first heavy" protection period Scenario 1: During the limitation period of the main claim, the claim is claimed but the mortgage is not claimed, and the lack of confirmation of the mortgage in the effective judgment or mediation does not cause the mortgagee to lose the mortgage. According to Article 140 of the Civil Code, the meaning of silence has legal effect only if it is statutory, agreed and in accordance with the customs of the transaction. Subject to the principle of "non-disregard", the conciliation statement (or judgment) shall not contain matters other than the main claim claim, nor shall it be stated that the mortgagee shall waive the mortgage on the mortgaged property, provided that the parties have not had a dispute over the mortgage. If the mortgagee does not give up the mortgage in an express manner, nor does he apply with the debtor to the real estate registration authority to cancel the mortgage registration, it is not appropriate to directly presume that the mortgagee has waived the right to exercise the mortgage, so the mortgagee still enjoys the mortgage right to the mortgaged property. Case 2 (Understanding Case 4): The original purpose of the statute of limitations and the statute of limitations for enforcement is to urge the right holder to claim his or her legal rights by initiating judicial proceedings within the statutory period. If no effective measures are taken to claim claims and exercise mortgages, such rights sleeping on the "hotbed" of limited time will not be necessary for legal protection. Case 3 (understand the following "second heavy" protection period case 8): the main claim within the statute of limitations period did not claim the main claim and apply for the realization of the mortgage, at this time should be applied to the civil procedure law chapter 15, section 7 of the non-contentious procedure, that is, the relevant rules of the case of the realization of the security right. It should be noted that: first, the applicant applying for the realization of the real right of security should not only be understood as the owner of the real right of security, but also include the mortgagor or owner other than the mortgagee; second, the situation of "applying for the realization of the mortgage right" and "filing a lawsuit" and "applying for arbitration" have the same effect, which constitute the cause of interruption of limitation; third, if the parties have no (part of) substantial dispute over the realization of the mortgage right and the (undisputed part) conditions have been achieved, the mortgagee can enforce it according to the court's ruling. If the mortgage right paid in full for the main creditor's right is eliminated, there is no limitation of application. If the mortgage right paid for the main creditor's right is eliminated, the remaining creditor's right is changed from "guaranteed (or priority) creditor's right" to "to", and the ordinary creditor's right ", and the right, the court rejected the creditor's application and caused the creditor to bring a lawsuit to the court because of the dispute between the parties on the validity of the main contract or the mortgage contract, whether the mortgage is effectively established, whether the secured claim is the liquidation period, and so on, which involves" two interruption of limitation ". The "second" protection period The premise of the application of the "second heavy" protection period is that the creditor has filed a lawsuit with the people and obtained a successful judgment (or the parties have reached a mediation) during the "first heavy" protection period, and this stage is transformed into a discussion of how to deal with the relationship between the statute of limitations and the mortgage, which mainly includes the following four situations in judicial practice: Scenario 5: No application for the exercise of the mortgage right during the "first heavy" protection period, after the judgment comes into effect (or the parties reach a mediation), apply for enforcement but do not claim the exercise of the mortgage right during the period of limitation of execution. Based on the principle of the property of the security right, the mortgage right is eliminated with the full payment of the main claim, and the main claim is not paid in full, the mortgage right is still in the remaining outstanding claim. At the same time, "application for enforcement" as a legal interruption, the time limit for the execution of the remaining claims will be affected by this, before the expiration of the mortgage and the remaining claims are protected by law. Extended Interpretation 1: After reaching an enforcement settlement agreement with the executed person under court mediation, the court ruled to terminate the enforcement procedure. According to the sixth paragraph of Article 16 of the notice on filing and closing opinions, if the person applying for execution (or the court) finds that the person subject to execution has property after the ruling of "ending the execution procedure" is made, the execution may be resumed on application (or ex officio). The application executor shall not be limited by the time limit for the execution of the application. The reason for this is that since the judgment of the principal claim has entered into force and the mortgagee has applied for enforcement within the statutory time limit, there is no question of interruption, suspension or extension of the statute of limitations for the principal claim. As a subordinate right, there is no question of interruption, suspension or extension during the exercise of the mortgage. The mortgagee may, when applying for the resumption of enforcement proceedings, claim the exercise of the mortgage together with the enforcement court. Extended interpretation 2: After reaching an execution settlement agreement with the person subject to execution under court mediation, and the person applying for execution requests the court to suspend or withdraw the execution application, the court may consider whether to make a decision to suspend or terminate the execution based on the execution of the case. It should be noted here that the termination of this execution procedure (see extended interpretation 1) is different from the termination of execution and suspension of execution. Suspension of execution, as the cause of suspension of execution limitation, can resume the calculation of execution limitation after the cause of suspension is eliminated. However, withdrawal of the execution application leads to the termination of the execution of the case. In principle, the execution procedure cannot be started again. Of course, in some cases, an application can be made to the execution court. In the author's opinion, such a situation of submitting an application and withdrawing the application constitutes an interruption of the execution statute of limitations, which should be recalculated. Extended Interpretation III: After the court mediation to reach a settlement with the debtor, the court ruled to terminate the execution proceedings, and then the debtor filed for bankruptcy liquidation, the mortgagee within the statutory period to declare claims to the administrator. Although the debtor filed an application with the people's court to initiate bankruptcy liquidation procedures during the execution of the case, the mortgagee has already declared its own property-guaranteed creditor's rights to the bankruptcy administrator with an effective judgment within the period of declaration of creditor's rights (legal protection period) stipulated by law, so the main creditor's rights are still within the period of legal protection, and accordingly, its mortgage right should also be protected by law. Scenario 6 (including scenario 9): "The first heavy" protection period does not apply for confirmation of the exercise of the mortgage, after the judgment has entered into force (or the parties have reached a mediation), apply for enforcement and claim the exercise of the mortgage during the period of limitation of execution, or neither apply for enforcement nor claim the exercise of the mortgage during the period of limitation of execution. The legal consequences arising from the former are referred to in case I and will not be repeated here. The legal consequences arising from the latter invoke the above-mentioned "first heavy" protection period situation II, that is, there is no need for legal protection.

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