Point of View... The (III) of the rules of the mortgage period.
Published:
2022-02-21
(Continuously) 2. From the General Principles of Civil Law to the Interpretation of the Guarantee System: the legislative evolution during the exercise of mortgage in China. (I) initial stage The General Principles of Civil Law, promulgated in 1986, do not provide for the period during which the mortgage is exercised, but only three provisions describe the types of prohibited collateral and the manner in which the secured obligation is performed-the mortgage. In 2005, the "Guarantee Law" was promulgated, which changed the position of the "General Principles of Civil Law" on mortgage, redefined the meaning of mortgage from the perspective of the civil law system, and proposed for the first time in Article 52 of this law that the mortgage and its secured creditor's rights "co-exist and co-exist". It is precisely because of the emergence of this clause that it leaves room for discussion on the definition of the nature of the mortgage during the exercise period. In addition, the General Principles of Civil Law does not set up a chapter on the General Principles of the Law of Debt, and in practice, the "general provisions" on the termination of rights and obligations under the Contract Law are often regarded as the general cause of the extinction of the debt, but the "general provisions" do not include "the loss of the right to prevail on the principal claim due to the expiration of the statute of limitations" as one of the circumstances in which the extinction of the claims. According to the provisions of "co-existence and co-extinction", the mortgage is still in existence at this time, and the general principles of civil law do not give a clear answer on how to deal with it after the mortgagor invokes the creditor's limitation defense. In 2000, the "Interpretation of Guarantee Law" was issued. Article 12 for the first time specifies the period of mortgage exercise, that is, "within two years of limitation of main creditor's rights". The author thinks that the above period should be divided into two periods for calculation. The first period is the limitation of action for main creditor's rights. Although the legislation does not clearly stipulate that the mortgage in this period is subject to the suspension, interruption and extension of the limitation period of main creditor's rights, however, some scholars, taking into account the basic principles of civil law, define this period as the period of exclusion, during which the mortgage is extinguished upon the expiration of four years (including the second period); others believe that it is a statute of limitations and should be understood as the "period of exclusion of the statute of limitations (the second period)", but agree that the second period is the "period of exclusion". What is to be explained here is that the second period does not belong to the limitation of execution. Before the Interpretation of Guarantee Law was promulgated, a review of the legislative evolution of China's Civil Procedure Law found that Article 169 of the 1982 Civil Procedure Law (Trial) and Article 219 of the Civil Procedure Law promulgated in 1991 are "six months" and "one year", which have nothing to do with the two-year exclusion period. Some scholars believe that this article draws on the provisions of civil law in Taiwan. In addition, the article only provides for "support", and no explanation is given as to whether "non-support" should be understood as "not protected by law" or "the mortgage is extinguished. (II) development stage Before the promulgation of the Property Law in 2007, there were four versions of disputes regulating the duration of mortgage. The legislation finally chose to delete the two-year exclusion period mentioned above, shortening the period of mortgage exercise from "within two years of limitation of the main creditor's right" to "within the limitation of action of the main creditor's right", so that the nature of the dispute was retained in the first period of discussion. At the same time, "support" is expressed as "not protected", this change in legislative language does not really solve the question of whether the mortgage is extinguished, but leaves the difficult question of whether the mortgagor can apply for the mortgagee's assistance in canceling the mortgage registration. Based on this, the following three kinds of judgment results are mainly obtained through the investigation of practical cases: first, the limitation of action of the mortgage right due to the main creditor's right has not been eliminated, and the mortgagee has no obligation to assist the mortgagee to cancel the mortgage registration; Second, the limitation of the mortgage right due to the main creditor's right has not been eliminated. In order to maintain the normal use and circulation of the mortgage and create greater social value, the mortgagee, the mortgagor shall have the right to apply for the cancellation of the registration of the mortgaged property. In addition, in 2014, the Jilin Provincial Higher People's Court issued the "(I) on Answers to Some Difficult Questions in Commercial Trials". The reply to question 28 clearly stated that the mortgage right due to the limitation of action of the main creditor's rights had not been eliminated. At the same time, it cleverly avoided the existing legislative gaps and proposed another way to cancel the mortgage registration. The mortgagor could sue for the termination of the mortgage contract as stipulated in Item 1 of Article 110 of the Contract Law. After the court decides to terminate the mortgage contract, the mortgagor may apply for cancellation of the mortgage registration with the judgment. Through the above combing, it is known that in this period of judicial practice, different levels of courts "different judgments in the same case" phenomenon, the purpose of mortgage setting is difficult to achieve at the same time so that both parties trapped in the mortgage relationship can not get rid of, and finally a "lose-lose" situation. (III) perfection stage In view of the difficult disputes at the forefront of civil and commercial trials, in order to unify the thinking of adjudication, standardize the discretion of judges, and enhance the openness, transparency and predictability of civil and commercial trials. The Supreme People's Court promulgated the "Minutes of the National Court Civil and Commercial Trial Work Conference" (hereinafter referred to as the "Minutes of the Meeting") in 2019, in which Article 59 clearly stipulates "the legal consequences of the mortgage right after the statute of limitations of the main creditor's rights", That is, the right to cancel the registration request is based on the premise of "the elimination of the mortgage right. However, we need to note that the Minutes of the Meeting do not belong to judicial interpretation and cannot be invoked as a basis for adjudication, but can only be invoked in the specific analysis of the reasons for the application of the law in the "opinion of this Court" part of the adjudication document. The Supreme Court, on the premise that it is unable to interpret the law in accordance with the existing context, amended the provisions of Article 202 of the Property Law by way of judicial guidance, which is undoubtedly a regulation of the phenomenon of "different judgments in the same case", with a view to the correct understanding and application of the minutes of the meeting by courts at all levels in the trial of the case. When the Civil Code was promulgated in May 2020, and the academic and practical circles criticized that it was still following the legislative model of Article 202 of the Property Law, the promulgation of Article 44 of the Interpretation of the Guarantee System made a new interpretation of Article 119 of the Civil Code, resulting in a new meaning of the period of exercise of the mortgage, the scope of application and the effect. However, there are also differences brought about by the differences in the legislative terms of "no protection" and "no support", and how to connect the "elimination of mortgage" adopted in the Minutes of the Conference and the "occurrence of defense" adopted in the Civil Code. Basic relationship between the period during which the 3. mortgage is exercised and the statute of limitations and enforcement of the principal claim (see next issue)
(Continuously)
2. From the General Principles of Civil Law to the Interpretation of the Guarantee System: the legislative evolution during the exercise of mortgage in China.
(I) initial stage
The General Principles of Civil Law, promulgated in 1986, do not provide for the period during which the mortgage is exercised, but only three provisions describe the types of prohibited collateral and the manner in which the secured obligation is performed-the mortgage. In 2005, the "Guarantee Law" was promulgated, which changed the position of the "General Principles of Civil Law" on mortgage, redefined the meaning of mortgage from the perspective of the civil law system, and proposed for the first time in Article 52 of this law that the mortgage and its secured creditor's rights "co-exist and co-exist". It is precisely because of the emergence of this clause that it leaves room for discussion on the definition of the nature of the mortgage during the exercise period. In addition, the General Principles of Civil Law does not set up a chapter on the General Principles of the Law of Debt, and in practice, the "general provisions" on the termination of rights and obligations under the Contract Law are often regarded as the general cause of the extinction of the debt, but the "general provisions" do not include "the loss of the right to prevail on the principal claim due to the expiration of the statute of limitations" as one of the circumstances in which the extinction of the claims. According to the provisions of "co-existence and co-extinction", the mortgage is still in existence at this time, and the general principles of civil law do not give a clear answer on how to deal with it after the mortgagor invokes the creditor's limitation defense.
In 2000, the "Interpretation of Guarantee Law" was issued. Article 12 for the first time specifies the period of mortgage exercise, that is, "within two years of limitation of main creditor's rights". The author thinks that the above period should be divided into two periods for calculation. The first period is the limitation of action for main creditor's rights. Although the legislation does not clearly stipulate that the mortgage in this period is subject to the suspension, interruption and extension of the limitation period of main creditor's rights, however, some scholars, taking into account the basic principles of civil law, define this period as the period of exclusion, during which the mortgage is extinguished upon the expiration of four years (including the second period); others believe that it is a statute of limitations and should be understood as the "period of exclusion of the statute of limitations (the second period)", but agree that the second period is the "period of exclusion". What is to be explained here is that the second period does not belong to the limitation of execution. Before the Interpretation of Guarantee Law was promulgated, a review of the legislative evolution of China's Civil Procedure Law found that Article 169 of the 1982 Civil Procedure Law (Trial) and Article 219 of the Civil Procedure Law promulgated in 1991 are "six months" and "one year", which have nothing to do with the two-year exclusion period. Some scholars believe that this article draws on the provisions of civil law in Taiwan. In addition, the article only provides for "support", and no explanation is given as to whether "non-support" should be understood as "not protected by law" or "the mortgage is extinguished.
(II) development stage
Before the promulgation of the Property Law in 2007, there were four versions of disputes regulating the duration of mortgage. The legislation finally chose to delete the two-year exclusion period mentioned above, shortening the period of mortgage exercise from "within two years of limitation of the main creditor's right" to "within the limitation of action of the main creditor's right", so that the nature of the dispute was retained in the first period of discussion. At the same time, "support" is expressed as "not protected", this change in legislative language does not really solve the question of whether the mortgage is extinguished, but leaves the difficult question of whether the mortgagor can apply for the mortgagee's assistance in canceling the mortgage registration. Based on this, the following three kinds of judgment results are mainly obtained through the investigation of practical cases: first, the limitation of action of the mortgage right due to the main creditor's right has not been eliminated, and the mortgagee has no obligation to assist the mortgagee to cancel the mortgage registration; Second, the limitation of the mortgage right due to the main creditor's right has not been eliminated. In order to maintain the normal use and circulation of the mortgage and create greater social value, the mortgagee, the mortgagor shall have the right to apply for the cancellation of the registration of the mortgaged property. In addition, in 2014, the Jilin Provincial Higher People's Court issued the "(I) on Answers to Some Difficult Questions in Commercial Trials". The reply to question 28 clearly stated that the mortgage right due to the limitation of action of the main creditor's rights had not been eliminated. At the same time, it cleverly avoided the existing legislative gaps and proposed another way to cancel the mortgage registration. The mortgagor could sue for the termination of the mortgage contract as stipulated in Item 1 of Article 110 of the Contract Law. After the court decides to terminate the mortgage contract, the mortgagor may apply for cancellation of the mortgage registration with the judgment.
Through the above combing, it is known that in this period of judicial practice, different levels of courts "different judgments in the same case" phenomenon, the purpose of mortgage setting is difficult to achieve at the same time so that both parties trapped in the mortgage relationship can not get rid of, and finally a "lose-lose" situation.
(III) perfection stage
In view of the difficult disputes at the forefront of civil and commercial trials, in order to unify the thinking of adjudication, standardize the discretion of judges, and enhance the openness, transparency and predictability of civil and commercial trials. The Supreme People's Court promulgated the "Minutes of the National Court Civil and Commercial Trial Work Conference" (hereinafter referred to as the "Minutes of the Meeting") in 2019, in which Article 59 clearly stipulates "the legal consequences of the mortgage right after the statute of limitations of the main creditor's rights", That is, the right to cancel the registration request is based on the premise of "the elimination of the mortgage right. However, we need to note that the Minutes of the Meeting do not belong to judicial interpretation and cannot be invoked as a basis for adjudication, but can only be invoked in the specific analysis of the reasons for the application of the law in the "opinion of this Court" part of the adjudication document. The Supreme Court, on the premise that it is unable to interpret the law in accordance with the existing context, amended the provisions of Article 202 of the Property Law by way of judicial guidance, which is undoubtedly a regulation of the phenomenon of "different judgments in the same case", with a view to the correct understanding and application of the minutes of the meeting by courts at all levels in the trial of the case.
When the Civil Code was promulgated in May 2020, and the academic and practical circles criticized that it was still following the legislative model of Article 202 of the Property Law, the promulgation of Article 44 of the Interpretation of the Guarantee System made a new interpretation of Article 119 of the Civil Code, resulting in a new meaning of the period of exercise of the mortgage, the scope of application and the effect. However, there are also differences brought about by the differences in the legislative terms of "no protection" and "no support", and how to connect the "elimination of mortgage" adopted in the Minutes of the Conference and the "occurrence of defense" adopted in the Civil Code.
Basic relationship between the period during which the 3. mortgage is exercised and the statute of limitations and enforcement of the principal claim (see next issue)
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