Font Size: a A A

Study Of Realizing Real Security Right

Posted on:2015-01-08Degree:DoctorType:Dissertation
Country:ChinaCandidate:M H WangFull Text:PDF
GTID:1266330431955201Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
Research of real security right regime undoubtedly increases in importance as privileged position of creditor’s right in modern society determines the privileged position of real security right. The real security right does not only ensure realization of creditor’s right, but also contributes to inducing creditor’s right, facilitating financing and creating friendly investment environment. Convenience of realizing real security right is one of main criteria to evaluate a real security right regime. Therefore establishing an efficient secured transaction system is the principle aim of legislation and reform of real security right. Since the latter half of20th century, laws regarding real security right have turn into the most active area in civil-law system and significant innovations in real security right regime have occurred worldwide. In china, the Real Right Law has not implemented for long, and it fails to take sufficient experience from foreign advanced achievements, which results public remedy procedure of realizing real security right runs poorly and self-help rules rarely exist. It is extremely urgent to improve the regime of realizing real security right. This article focuses on functioning of public remedy procedure and structure of self-help rules. Except for preamble, it generally falls into three sections of foundation of realizing real security right, public remedy of realizing real security right and self-help of realizing real security right. The full text comprises eight chapters as follows:Chapter I. Nature, Power and Function, Realization of Real Security Right.It is the premise and basis of studying realization of real security right to define nature, power and function thereof. In our opinion, real security right is classified as real right on basis of combing various doctrines, which includes two types of power and function, i. e. right of appraising at current rate and priority of claim. The former reflects immediate domination of real right and the later reflects excludability of real right. The right of appraising at current rate is the core of real security right, of which exercise causes inevitably the priority of claim. The right of appraising at current rate, as a result of ownership’s dispositive function being limited, exists potentially before meeting certain conditions. In principle secured party is able to exercise the right of appraising at current rate without security provider’s permission. Unless otherwise prescribed by law, secured party is entitled to realize real security right in self-help way.For improving rules of realizing real security right, it should be the objective to clarify value orientation. In case of schism on legislation of civil-commercial law, real security right regime in civil cod lays emphasis on fair value. Seen from categories of real security right, the right on immovable property regards fair value and the right on movables tends to efficiency value. Since the real security right is more frequently applied to commercial transactions in modern society, reformation thereof takes more in coincidence with concepts of commercial law, reflecting values of efficiency, benefit and safety. It is determined by value orientation that perfect rules of realizing real security right shall embody four respects of values, i. e. efficiency, benefit, safety and fairness.Chapter II. Approach to Realizing Real Security Right.Approach to realizing real security right refers that, by what approach secured property is appraised at current rate where requirements of realizing real security right are reached. Depending on various standards, the approaches to realizing real security right can be identified as unitive mode and respective mode, public remedy mode and self-help mode, prohibition mode and permit mode. The public remedy mode is further divided in two types of strict and lenient. Judicial procedure of public remedy has various modes as well, for example, as to realizing real security right, Germany adopts both of litigation mode and application mode, Japan adopts application mode and Taiwan adopts non-lawsuit mode. On the basis of competitive law, this article analyses limitation of Chinese current rules of approaches to realizing real security right and puts forward constructive suggestions. The limitation mainly presents as undefined rules of non-lawsuit procedure, lack of self-help rules of pledge and lien, legal loopholes in rules of realizing pledge to rights and so on. The constructive suggestions are to establish privileged position of self-help, to specify self-help rules, and to vary and simplify approaches of self-help.Chapter III. Conditions and Duration of Realizing Real Security Right. Secured party is able to realize real security right only in case that agreed term matures or conditions are reached. Reaching conditions is called as maturity of condition of appraising at current rate in Germanic civil law, and it is defined as "breach" in Uniform Commercial Code. Unless otherwise procedural factors required, conditions of realizing real security right by self-help are basically in accordance with the ones by applying to court. This article analyses the essential requirements of realizing real security right by applying to court, and that secured party’s application whether or not be restricted in three situations of coexistence of real security rights, coexistence of personal security and real security and sealing up secured property.As to Article202of Chinese Real Right Law, we present that the nature of duration therein should be an existence period of mortgage right, which calculates by reference to action limitation of principle creditor’s right. Article202applies to pledge and lien by analogy, which is the requirement of keeping real security right system corresponding and conform to legislation trend of establishing unitive regime of security right on movables. Where existence period of real security right is stipulated by agreement, it is valid if agreed period is shorter than action limitation of principle creditor’s right, and if not, it is invalid.Chapter IV. Construction of Civil Non-Lawsuit Procedure of Realizing Real Security Right.The proceeding of realizing real security right, added in current Civil Procedural Law, is one of. Fundamental legal principles of non-lawsuit procedure have to be defined prior to study of realizing real security right by public remedy. Therefore this article analyses some issues such as range of parties, jurisdiction, expression of order, remedy of and deal with respondent’s substantial objection and the like.The remedy and handle of respondent’s substantial objection is critical part of such researches. In our opinion, none of substantial objections proposed by respondent shall bring to trial in order to reflect efficiency of non-lawsuit procedure, rather to remedy through other relevant judicial proceedings. In the future we should learn from instance of legislation in Taiwan to establish an execution objection mechanism as major path of substantial dispute settlement.Chapter V. Law Application in Lawsuit of Realizing Real Security Right.Calculating range of maximum amount of claim is one critical issue with respect to realizing maximum mortgage right. The calculating range refers to the amount of claim included in balance after creditor’s right being confirmed. The calculating range generally fall into two methods of maximum limit of capital and maximum limit of claim, with main difference of collateral amount of claim being included or not. By analyzing semantic interpretation and efficiency value, in China calculating range of maximum amount of claim in maximum mortgage right should adopt the method of maximum limit of capital.Realization of mortgage right on immovable is often confused with undertaking responsibility in case of false mortgage, thus nature of mortgager’s liability without mortgage registration is closely related to realizing mortgage. Where mortgager fails to register for mortgage, creditor is able to request mortgager for either undertaking liability for damage due to false mortgage or performing contractual security obligations.Chapter VI. Enforcement Procedure of Realizing Real Security Right. After obtaining legal document from court to permit appraising secured property at current rate, secured party is capable of applying for enforcement procedure. Different countries and territories depend on different rules to operate enforcement procedure. This article analyses the enforcement basis of realizing real security right and advocates affirming enforcement potency granted by notary public on mortgage, lien and so on, through amending laws and judicial interpretations.This paper mainly focuses on application for and approaches to enforcement, implement and legal consequence of judicial auction, and other issues alike. In our opinion, application for enforcement shall adopt residue principle; China should establish mandatory management system so as to allow secured party to realize real security right in means of mandatory management. Chapter VII. Fundamental Issues of Realizing Real Security Right by Self-Help. Self-help of real security right is to realize the right without judicial approaches. This article probes into the basis, principle and content of self-help. The major basis of realizing real security right by self-help is that it accords with economic principle, also makes for keeping order and rarely infringes others’interest. Establishment of self-help rules shall abide by following principles, i.e. maximization of disposition value of secured property, balance principle of benefit and simplification-specification-transparency principle. In addition, this article also analyses the composition of self-help rules for example, as German Civil Code and Uniform Commercial Code.Chapter VIII. Self-Help Rules of Realizing Real Security Right.Establishment of self-help rules of real security right is the key point in this article. This chapter discusses the following rules in detail: preperation rules on realization of self-help, rules on collateral handling, rules on collateral redemption,rules on covering debts with collateral, special rules on pledge right realization, remedy rules for guarantor and related party. Moreover we put forward some legislative advises for self-help rules of realizing real security right.
Keywords/Search Tags:Real security right, Real security right realization, Realization ofPublic remedy, Realization of self-help, Civil Non-Lawsuit Procedure
PDF Full Text Request
Related items