On The Realization Of The Mortgage

Market economy means venture economy.How to settle the potential dangers in market economy has always been the economists' concerns as well as the important task of the civil and commercial laws.Separating the guarantor's liabilities from the property,the hypothecary systems is to decrease maximumly or eradicate the creditor's risks caused by nonperformance of the debts.However,the ideal goals to establish the hypothecary system can not be achieved as expected in our actual cases as many troubles arise for the mortgagors to bring their hypothec into effect when debtors do not meet the mature debts.Bearing in mind the perplexity our country is facing as to the fulfillment of rights for morgagors,! attempt in this thesis to work out the possible reasons rooted in legislation and judicature that result in the phenomenon.Meanwhile,I have observed the successful legislative cases in foreign lands,conpared with them,and ventured to put forward some legislative proposals on the fulfillment of hypothecs in China's property laws combining with China's situation.Besides the Introduction and the Conclusion,the thesis contains six chapters.Chapter One The General Summary on Hypothec FulfillmentDifferent nations and scholars show disagreement as to the definition of hypothec,and in particular^ great gap exists between the English and American law system and that of the European Mainland.China takes after the European modeLAs far as the definition and the system of hypothec are concerned,we have undergone the collateral shift from the solely estates to the movables and the division of the hypothec with pawnee.In this paper,the hypothec refers to the creditor's rights of priority to be repaid through the money appraised at the current concerning the property the debtor or the third person still hold in hand.The hypothec fulfillment means that the creditor's rights guaranteed by the mortgates should be preferably discharge by settling the guaranty when they fall due and the mature debts can never be met. Two requirements are required for the hypothec fulfilhnent:one is the real existence of hypothec.the other is that the creditor's rights fall due while the debts can not be met.The latter refers to the common condition for hypothec fulfillment However.if something happens that the legal mortgage holser's interests shall be spoiled,the mirtgage holder can take emergent actions to claim their hypothec even though the creditor's rights do not fall due.Meanwhole,! also touch upon the inseparability of the hypothec fulfillment as well as the relationship between the hypothec fulfillment and the common debtor's give-and-take of property in this chapter.The division.partial damage or mutilation of guaranty has little effect on the carryout of hypothec,and nor does the division,transfer or partial discharge of hypothecation.Once the hypothec has not hold of the mortgage has the choice upon the alternative of the hypothec fulfillment or the common debtor's give-and take of peoperty before the hypothecation is Mfilled.Chapter Two The Intererlationship between the Hypothec and the other Security InterestHypothec,m essence,is the priority to be discharged.Its functions can be achieved by guaranteeing the discharge priority entitled to the mortgagors.However,the priority has its limitations.To make clear the status of the hypothec,! have tried in the thesis to explain in details the relationship between hypothec with the similar security interestsfincluding pawn,lien,proprietary reservation release vouch),and to advance the principles that which of them should take precedencd of others when mingled together in reality.Chapter Three Mortgagor's Rights to defense and to dischargeWhen a mortgage holder claims his hypothec,the mortgagor will have to confront the risk of losing the guaranty ownership and thus,he is entitled to the rights to defense by law in many nations to protect his own interests.Hhe thesis here is to classify the mortgagor's rights to defense into the defensive rights for the debtors.the defensi...