A Study On The Non - Litigation Procedure Of Realizing Security Interest

The realization of security interest has a critical influence on the security system’s function to ensure transaction safety and prevent transaction risk. With the developing of economy, civil litigation, arbitration, notarization enforcement and other traditional ways have been unable to achieve the efficient and convenient modern aspirations of realizing security interest. In this background, the 2012 Civil Procedure Law adds to the special procedure of realization of security Interest, which changes the legislation about the method of realizing security interest, and has important practical significance. However, as a new non-litigation rule, there is no judicial experience of realizing of security Interest. And, under the guidance of “legislation should be coarse rather exhaustive”, the legislative provisions are too rough. So as to it encounters many problems. So we need to do deep theory study to implement the 2012 Civil Procedure law better. In this motivation, this paper will set forth basic theory, empirical expedition, and foreign experience about the non-litigation procedure of realizing security interest. With these studies, propose the corresponding perfect path in accordance with non-litigation procedure principles. This paper is divided into five chapters, each chapter’s summary now described as follows:The first chapter is to analyze the basic theory about the non-litigation procedure of realizing security interest. And three aspects will be explained: firstly, an introduction to definition, types and effectiveness of security interest.Secondly, by contrasting the special procedure and the non- litigation procedure in connotation and principles, demonstrating that the special procedure belongs to the non-litigation procedure Category. Thirdly, with the litigation procedure becoming non-litigation one, the non-litigation procedure is gradually expanding, which laid the foundation for the research into non- litigation procedure of realizing security interest.The second chapter is to interpret legislation about the non-litigation procedure of realizing security interest. At first, it describes the legislative background from three aspects: the legislative situation before 2012 Civil Procedure law, the method of realizing security interest, and the process of the non-litigation procedure of realizing security interest; Secondly, it expounds the relational specific provisions and general provisions of 2012 Civil Procedure Law, and analyses the jurisprudence basis; Thirdly, it elaborates the legislative value from all aspects, such as multiple construction and quick dispute resolution mechanism,rational judicial resource allocation, and so on.The third chapter is about the empirical study on the non-litigation procedure of realizing security interest. Firstly, it introduces and analyzes cases about security interest realization around the country, and summarizes four practice modes, such as Zhejiang, Jiangsu, Qixing(Guangxi), and then sums the procedural structure of non-litigation procedure of realizing security interest. Secondly, it describes major debate in judicial practice from trials, the case jurisdiction and the realize conditions. Finally, it analyzes the defect in the non-litigation procedure of realizing security interest, from three levels: legislative structure, procedural defects and substantive law flaw.The fourth chapter is to focus on the foreign reference about the realization of a security interest. On the foundation of introduction judicial system and execution procedure, this chapter expounds security interest rules,realization systems and non-litigation procedure in France, Germany, Japan, UK, USA and Taiwan of China.And putting forward brief commentary on the inspiration to how to perfect China’s non-litigation procedure about realization of security Interest.The fifth chapter is to find the perfect path about the non-litigation procedure of realizing security interest. And there are four ways: first, " non- litigation procedure " should be used instead of “special procedure”, and draws up the independent non- litigation procedural law as soon as possible, relevant legislative provisions also should be drafted. Second, it proposes to perfect the procedure by improving procedural safeguards, linking up procedures, reconstructing review mechanism, and clear the relevant operational provisions; Third, relevant substantive rules should be improved by resolving conflicts between the substantive rules and constructing an unified registration system. At last, three safeguard measures, effective usage, fairly operation and case management are proposed.