Research On Hypothec Fulfillment

Hypothec fulfillment is not any the main effect of hypothec, but also the mortgagee's most important right, and it's the crucial part of hypothec system as well as the fundamental purpose of mortgage guarantee. Although at present our country's legal system for the implementation of hypothec has done a more complete specification, but these systems are designed to be too simple, abstract, therefore difficult to operate, cause the phenomenon that realizing the mortgage is high-cost and inefficient remains massive existence in mortgage guarantee practice, have a direct impact on the realization of mortgage guarantee system value and the safeguard of the interests of related obligee. Therefore, the paper discussing the problems for realizing the mortgage is of great theoretical and practical significance.Based on the implementation of hypothec for topics, this paper mainly discusses the problems of approaches, approaches and period to realizing the mortgage right, not only makes a theoretical discussion for related problems and a analysis on the feasibility and validity in practice operation, but also makes a comparative analysis of the relevant system and experience, on this basis, pertinently puts forward some suggestion on optimizing our country's legislation.This text is divided into four chapters, main content as follows:The first chapter is the overview of hypothec fulfillment, mainly elaborates the concept of hypothec fulfillment, the important meaning of hypothec fulfillment, the conditions of hypothec fulfillment and the relationship between hypothec fulfillment and taking claims with just the debtor's general property. The implementation of hypothec is essentially the implementation of the work right and the priority right, including the two connected stages of work of mortgaged property and the creditor's priority. Hypothec fulfillment is the main effect of hypothec, the mortgagee's most important right, also the key link of mortgage guarantee system and the ultimate embodiment of guaranty system's value, is of great significance in the social and economic practice. The implementation of hypothec shall be simultaneously satisfied three conditions:hypothec exist effectively; the obligor fails to pay due debts or the situations stipulated by the parties concerned for realizing the mortgage right occur; enforcing hypothec in statutory period.Our country's law doesn't set rules on the relationship between hypothec fulfillment and taking claims with just the debtor's general property, should be supplemented.The author thinks that the mortgagee in principle has the freedom to choose from realizing the mortgage right and applying for an enforcement to the debtor's general property by court, except under the special circumstance that the debtor's total property is insufficient to discharge all claims. And think that a general creditor has the right in principle to apply for court to enforce the mortgaged property.As for how to guarantee the mortgagee's priorities, can be solved by adopting and transforming the elimination system.The second chapter is the approaches for realizing the hypothec, including two aspects:the comparative investigation into different countries' systems and our country's approaches to realize the hypothec. On the approaches to realizing the mortgage, major countries have two legislative modes that self-help and seeking help of public aid force, the civil law countries adopt the former, the common law countries adopt the latter, two models each has advantages and disadvantages, in the world at present most countries adopt French relative aid force mode, namely after giving the mortgagee for compulsory execution rights, at the same time realizing the mortgage right by the parties through an autonomy way in private is not forbidden. On the approaches of realizing the hypothec, compared with previous civil law and the guarantee law, the Property law has made a great progress, but there are still some defects, displays in:the relevant provision in the Property law is too rough and lack of procedural law to make its response, which makes it doubtful to realize the intention of lawmaking to build a non-litigation execution procedures for realizing the hypothec, shall be modified. Although the Property law stipulates the parties may realize the hypothec by consensus means, but the mortgagee's self-help are excluded from the approaches of hypothec realization, doesn't see the latest legislation trend of foreign realizing approaches of hypothec, in order to achieve the institutional goal realizing the hypothec in high efficiency,at low cost, our country should reference for foreign successful experience in legislation and be in full consideration of the actual situation in our country, on the basis, tries to design a system which allows the chattel mortgagee to fulfill the hypothec through limited self-help. The third chapter is the methods of realizing the hypothec, including introduction of foreign legislation about hypothec fulfillment, the methods about hypothec fulfillment in our country, and some legislation proposals concerning confirming the methods of realizing the hypothec. Compared to the common law countries and regions, the legislation of civil law countries and regions about the methods of realizing the hypothec is more agile, and lays particular stress on autonomy even self-help. At present there are only three methods of realizing the hypothec in our country:auction, sell and discount, and the flow escort items still are forbidden, which the author thinks not necessary. The methods about hypothec fulfillment in our country are not rich enough to fully meet the practical needs,so our legislation should be improved on the basis of reference for foreign successful experience in legislation and full consideration of the actual situation in our country. The author suggests our country to introduce the compulsory management system of the continental law system and clearly acknowledged the legitimacy of compulsory execution way of hypothec which has already been adopted in practice.The fourth chapter is the time limit of hypothec fulfillment, including the inspection of foreign legislation and some suggestions about perfecting our legislation. The problem about the time limit of hypothec fulfillment is a vital link of the hypothec fulfillment system. There are mainly three modes about the time limit of hypothec fulfillment in other countries and regions' legislation:limitation of action, scheduled period and public summons. There is no clear stipulation about the time limit of hypothec fulfillment in the Guarantee Law. The Interpretation of the Guarantee Law gives a supplementary explanation about it, but the article 202 of the Property law makes inconsistent regulations. Because of the semantic ambiguity the article 202 of the Property law, there are different understanding about it, so the author thinks that sets has made only a inexhaustive time limit to hypothec fulfillment, therefore doesn't make the problem gets really solved, which should be perfected by the supreme people's court to promulgate a judicial explanation that clarify the nature of the time limit of hypothec and note of cohesion with the current mortgage registration system.