Point of View... The (II) of the rules of the mortgage period.
Published:
2022-02-17
Discrimination and Analysis of 1. Related Concepts (I) Mortgage Period and Mortgage Term Exploring the relationship between the mortgage period and the term of the mortgage is essentially a discussion of the difference between "term" and "period. What is the period and duration? The modern Chinese dictionary says that the former is "a certain period of time", and the latter is "a limited time, which also refers to the final limit of the limited time". From the legal point of view, "duration" refers to the time that causes the occurrence, change and elimination of civil legal relations. Combined with the meaning of the dictionary, it should be divided into period and duration, the former refers specifically to the time elapsed from a particular point in time to another particular point in time, a particular period of time (dynamic phase) on the expiry date of the spot date, while the latter refers specifically to a particular point in time, or a certain time that is indivisible (static point). From this point of view, the expression of the period of exercise of the mortgage may cover two meanings, one is the period of exercise of the mortgage, that is, the provision of a certain period of time. The second is the date of exercise of the mortgage, that is, a certain period of time. The specific meaning still needs to be examined in the context of the specific context, and if it refers only to a period of time, the expression of the period during which the mortgage is exercised may be more appropriate than the expression of the period during which the mortgage is exercised. (II) statute of limitations and mortgage period From a broad point of view, the statute of limitations, that is, the legal system in which the right holder's failure to exercise his rights within the statutory period will result in the obligor's right to file a defense of refusal to perform, should be attributed to the components of the period, both of which can be understood as the time that leads to the creation, change and elimination of civil legal relations. At this time, the period can be understood as including the period of limitation of action, the period of mortgage, the period of avoidance, etc.; from a narrow point of view, the limitation of action is not part of the period, but is outside the period, different from the period during which the right holder exercises the right or the obligor performs the obligation. At this point, the statute of limitations is juxtaposed with the period, which, of course, includes the guarantee period, the mortgage period, the period during which the right of avoidance is exercised, and so on. According to the current system, the current legislation of our country adopts the broad concept of period, and regards the statute of limitations as a specific period. (III) the period of exercise of the mortgage and the period of the mortgage, the period of the mortgage. The legislation related to the period of exercise of mortgage in the Property Law and the Interpretation of the Guarantee Law shall be invalidated after the entry into force of the Civil Code, but its provisions are still of reference to the existing legislation and judicial practice. Although the "mortgage period" mentioned in Article 191 of the Property Law is different from the "mortgage period" mentioned in Article 67 of the Interpretation of the Security Law, from the perspective of system interpretation, both refer to the period from the establishment of the mortgage to the extinction of the mortgage. Article 419 of the Civil Code adopts the legislative model of the Property Law, and the "mortgage period" should also be understood according to the above meaning. The author believes that the mortgage period (or the duration of the mortgage right) includes the "vacant" period of the mortgage right, the exercise period of the mortgage right and the "natural" period of the mortgage right. The "vacant" period refers to the period from the registration of the real estate mortgage right or the entry into force of the chattel mortgage contract to the expiration of the liquidation period of the secured principal creditor's rights; the exercise period of the mortgage right should be understood as "effective duration" in essence ", means the period from the expiration of the period of liquidation of the secured principal claim to the expiration of the statute of limitations for the secured principal claim; the" natural "period of the mortgage is the period from the expiration of the statute of limitations for the secured principal claim to the extinction of the mortgage. If the mortgagor does not invoke the limitation defense, but waives the limitation defense through judicial proceedings, the conclusion of an agreement to realize the mortgage, the creditor's own auction, the sale of the mortgaged property, etc., the effective duration of the mortgage includes the "natural" period of the mortgage, that is, until the mortgage is extinguished. Since it is impossible to predict whether the effect of exclusion of enforcement will occur, it would be inappropriate to extend it to the point of extinction of the mortgage in a state of uncertainty. In summary, whether the mortgage period or the duration of the mortgage includes the effective duration of the mortgage, the three overlap in time stages, but there are differences in the determination of the starting and ending points and the termination points. Period of exercise of (IV) mortgage and period of exclusion In addition to the period of reprimand, in addition to the meaning of exclusion, rebuke, rebuke, rebuke words, means that the right due to the expiration of the period and extinguished, also known as the predetermined period, unchanged period, duration and so on. What we want to explain here is that although the exclusion period is also called the duration, the meaning of the two is not exactly the same. The exclusion period can be called the duration, such as the "revocation period" mentioned in Article 152 of the Civil Code, the "duration of agreed rights" mentioned in Article 199, and the "duration of debt repayment period" mentioned in Article 28 of the Sole Proprietorship Law. However, the duration does not specifically refer to the period except the denunciation period, for example, "during the existence of a legal person" as described in Chapter III of Title I of the Civil Code, and "during the existence of a marriage relationship" as described in Title V. In other words, the duration includes the period of exclusion, the period of exercise of the mortgage, etc. What is the relationship between the period of exclusion and the period of the exercise of the mortgage, it is necessary to define the nature of the period of the exercise of the mortgage, the academic and practical circles have always had great differences on this, the author will focus on the following.
Discrimination and Analysis of 1. Related Concepts
(I) Mortgage Period and Mortgage Term
Exploring the relationship between the mortgage period and the term of the mortgage is essentially a discussion of the difference between "term" and "period. What is the period and duration? The modern Chinese dictionary says that the former is "a certain period of time", and the latter is "a limited time, which also refers to the final limit of the limited time". From the legal point of view, "duration" refers to the time that causes the occurrence, change and elimination of civil legal relations. Combined with the meaning of the dictionary, it should be divided into period and duration, the former refers specifically to the time elapsed from a particular point in time to another particular point in time, a particular period of time (dynamic phase) on the expiry date of the spot date, while the latter refers specifically to a particular point in time, or a certain time that is indivisible (static point). From this point of view, the expression of the period of exercise of the mortgage may cover two meanings, one is the period of exercise of the mortgage, that is, the provision of a certain period of time. The second is the date of exercise of the mortgage, that is, a certain period of time. The specific meaning still needs to be examined in the context of the specific context, and if it refers only to a period of time, the expression of the period during which the mortgage is exercised may be more appropriate than the expression of the period during which the mortgage is exercised.
(II) statute of limitations and mortgage period
From a broad point of view, the statute of limitations, that is, the legal system in which the right holder's failure to exercise his rights within the statutory period will result in the obligor's right to file a defense of refusal to perform, should be attributed to the components of the period, both of which can be understood as the time that leads to the creation, change and elimination of civil legal relations. At this time, the period can be understood as including the period of limitation of action, the period of mortgage, the period of avoidance, etc.; from a narrow point of view, the limitation of action is not part of the period, but is outside the period, different from the period during which the right holder exercises the right or the obligor performs the obligation. At this point, the statute of limitations is juxtaposed with the period, which, of course, includes the guarantee period, the mortgage period, the period during which the right of avoidance is exercised, and so on. According to the current system, the current legislation of our country adopts the broad concept of period, and regards the statute of limitations as a specific period.
(III) the period of exercise of the mortgage and the period of the mortgage, the period of the mortgage.
The legislation related to the period of exercise of mortgage in the Property Law and the Interpretation of the Guarantee Law shall be invalidated after the entry into force of the Civil Code, but its provisions are still of reference to the existing legislation and judicial practice. Although the "mortgage period" mentioned in Article 191 of the Property Law is different from the "mortgage period" mentioned in Article 67 of the Interpretation of the Security Law, from the perspective of system interpretation, both refer to the period from the establishment of the mortgage to the extinction of the mortgage. Article 419 of the Civil Code adopts the legislative model of the Property Law, and the "mortgage period" should also be understood according to the above meaning. The author believes that the mortgage period (or the duration of the mortgage right) includes the "vacant" period of the mortgage right, the exercise period of the mortgage right and the "natural" period of the mortgage right. The "vacant" period refers to the period from the registration of the real estate mortgage right or the entry into force of the chattel mortgage contract to the expiration of the liquidation period of the secured principal creditor's rights; the exercise period of the mortgage right should be understood as "effective duration" in essence ", means the period from the expiration of the period of liquidation of the secured principal claim to the expiration of the statute of limitations for the secured principal claim; the" natural "period of the mortgage is the period from the expiration of the statute of limitations for the secured principal claim to the extinction of the mortgage. If the mortgagor does not invoke the limitation defense, but waives the limitation defense through judicial proceedings, the conclusion of an agreement to realize the mortgage, the creditor's own auction, the sale of the mortgaged property, etc., the effective duration of the mortgage includes the "natural" period of the mortgage, that is, until the mortgage is extinguished. Since it is impossible to predict whether the effect of exclusion of enforcement will occur, it would be inappropriate to extend it to the point of extinction of the mortgage in a state of uncertainty. In summary, whether the mortgage period or the duration of the mortgage includes the effective duration of the mortgage, the three overlap in time stages, but there are differences in the determination of the starting and ending points and the termination points.
Period of exercise of (IV) mortgage and period of exclusion
In addition to the period of reprimand, in addition to the meaning of exclusion, rebuke, rebuke, rebuke words, means that the right due to the expiration of the period and extinguished, also known as the predetermined period, unchanged period, duration and so on. What we want to explain here is that although the exclusion period is also called the duration, the meaning of the two is not exactly the same. The exclusion period can be called the duration, such as the "revocation period" mentioned in Article 152 of the Civil Code, the "duration of agreed rights" mentioned in Article 199, and the "duration of debt repayment period" mentioned in Article 28 of the Sole Proprietorship Law. However, the duration does not specifically refer to the period except the denunciation period, for example, "during the existence of a legal person" as described in Chapter III of Title I of the Civil Code, and "during the existence of a marriage relationship" as described in Title V. In other words, the duration includes the period of exclusion, the period of exercise of the mortgage, etc. What is the relationship between the period of exclusion and the period of the exercise of the mortgage, it is necessary to define the nature of the period of the exercise of the mortgage, the academic and practical circles have always had great differences on this, the author will focus on the following.
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