Point of View... The (I) of the rules of the mortgage period.
Published:
2022-02-17
Abstract From the point of view of the interpretation of the civil law system, the meaning of the mortgage period and the duration of the mortgage convergence, but different from the effective duration of the mortgage, the mortgage "period" and the mortgage "term" is synonymous with the specific context. Legislative amendments and improvements so far, the nature of the term of the exercise of mortgage rights is still controversial, the statute of limitations, except for the period of rebuke, from the attribute theory and other theories came into being, the universities said each has its own advantages, the academic community and even the judicial practice community has not formed a unified conclusion for a long time. The inconsistency of the legislative terms "no protection" and "no (to) support" related to mortgage rights also causes great ambiguity. After the mortgaged immovable property (or movable property) has been lost, damaged or expropriated, the "guarantee substitute" has been obtained. At this time, the mortgage exercise period rules should be extended to the "guarantee substitute" and continue to apply; if the "guarantee substitute" is not obtained, both parties will mortgage other immovable property (or movable property) again. In order to achieve a balance of interests between the creditor and the mortgagor, the legislation should clarify the corresponding mortgage exercise period of the "second mortgage, rather than simply discussing the" period of exercise of the mortgage "on the basis of the existing Civil Code and the Interpretation of the Security System". Introduction According to the current system, from the "duration of mortgage" mentioned in the Interpretation of the Security Law to the "duration of mortgage" mentioned in the Property Law to the "duration of mortgage exercise", "duration of mortgage exercise" and "duration of effective mortgage" mentioned in academic and even practical circles, do the above expressions mean that the concepts are the same, and how should they be distinguished if different concepts are recognized? What is the relationship between different concepts? After the distinction, we look back on the legislative history of the "time limit for the exercise of the mortgage right" and find that the Security Law promulgated in 1995 did not stipulate the time limit for the exercise of the mortgage right, and the Interpretation of the Security Law in 2000 explicitly stipulated the time limit for the exercise of the mortgage right as "within two years of the limitation of the principal claim". After a lapse of seven years, the promulgation of the "Property Law" broke the original legislative model, shortening "within two years of the limitation of the main creditor's rights" to "within the limitation period of the main creditor's rights". At the beginning of the promulgation of the "Civil Code", the legislative model of the "Property Law" was also adopted. However, with the promulgation of the "Interpretation of the Guarantee System", the period for the exercise of mortgage has been given a new definition. After such a long period of legislative amendments and improvements, has the existing legislation failed to add new diseases to the old ones? Has the nature of the period of exercise of the mortgage been clearly defined? Are the legal consequences of not exercising within the statutory period sufficiently clear? How to clarify the relationship between the period of exercise of the mortgage and the limitation period of the main claim and the limitation period of execution? On the basis of conceptual analysis and legislative evolution, how should we understand the provisions of existing legislation on "no (to) support" and "no protection? In the event that the collateral is lost, damaged without compensation (compensation, insurance) or the value of the collateral is reduced, the parties again set up a mortgage on another immovable property (or movable property), how to connect the original immovable property (or movable property) mortgage period with the existing immovable property (or movable property) mortgage period? This paper hopes to explore and tentatively give the answer or solution to the corresponding problem from the fuzzy zone of the existing legal regulation.
Abstract
From the point of view of the interpretation of the civil law system, the meaning of the mortgage period and the duration of the mortgage convergence, but different from the effective duration of the mortgage, the mortgage "period" and the mortgage "term" is synonymous with the specific context. Legislative amendments and improvements so far, the nature of the term of the exercise of mortgage rights is still controversial, the statute of limitations, except for the period of rebuke, from the attribute theory and other theories came into being, the universities said each has its own advantages, the academic community and even the judicial practice community has not formed a unified conclusion for a long time. The inconsistency of the legislative terms "no protection" and "no (to) support" related to mortgage rights also causes great ambiguity. After the mortgaged immovable property (or movable property) has been lost, damaged or expropriated, the "guarantee substitute" has been obtained. At this time, the mortgage exercise period rules should be extended to the "guarantee substitute" and continue to apply; if the "guarantee substitute" is not obtained, both parties will mortgage other immovable property (or movable property) again. In order to achieve a balance of interests between the creditor and the mortgagor, the legislation should clarify the corresponding mortgage exercise period of the "second mortgage, rather than simply discussing the" period of exercise of the mortgage "on the basis of the existing Civil Code and the Interpretation of the Security System".
Introduction
According to the current system, from the "duration of mortgage" mentioned in the Interpretation of the Security Law to the "duration of mortgage" mentioned in the Property Law to the "duration of mortgage exercise", "duration of mortgage exercise" and "duration of effective mortgage" mentioned in academic and even practical circles, do the above expressions mean that the concepts are the same, and how should they be distinguished if different concepts are recognized? What is the relationship between different concepts? After the distinction, we look back on the legislative history of the "time limit for the exercise of the mortgage right" and find that the Security Law promulgated in 1995 did not stipulate the time limit for the exercise of the mortgage right, and the Interpretation of the Security Law in 2000 explicitly stipulated the time limit for the exercise of the mortgage right as "within two years of the limitation of the principal claim". After a lapse of seven years, the promulgation of the "Property Law" broke the original legislative model, shortening "within two years of the limitation of the main creditor's rights" to "within the limitation period of the main creditor's rights". At the beginning of the promulgation of the "Civil Code", the legislative model of the "Property Law" was also adopted. However, with the promulgation of the "Interpretation of the Guarantee System", the period for the exercise of mortgage has been given a new definition. After such a long period of legislative amendments and improvements, has the existing legislation failed to add new diseases to the old ones? Has the nature of the period of exercise of the mortgage been clearly defined? Are the legal consequences of not exercising within the statutory period sufficiently clear? How to clarify the relationship between the period of exercise of the mortgage and the limitation period of the main claim and the limitation period of execution? On the basis of conceptual analysis and legislative evolution, how should we understand the provisions of existing legislation on "no (to) support" and "no protection? In the event that the collateral is lost, damaged without compensation (compensation, insurance) or the value of the collateral is reduced, the parties again set up a mortgage on another immovable property (or movable property), how to connect the original immovable property (or movable property) mortgage period with the existing immovable property (or movable property) mortgage period? This paper hopes to explore and tentatively give the answer or solution to the corresponding problem from the fuzzy zone of the existing legal regulation.
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