The Research Of The Enforcement Procedure Of Mortgage Without Litigation

The mortgage guarantee plays an essential role in the guarantee. The mortgage which is known as the “king of the guarantee” has a very important role in economic development. The key of the mortgage system is to realize the hypothec. If the hypothec can be fulfilled more flexibly and effectively, the creditors will achieve more interests. The Property Law of 2007 provided hypothec fulfillment a new way——creditors can apply to the court for the auction of mortgaged property without litigation. Actually, it couldn’t be operated without litigation at that time because there were no specific rules in the Civil Procedure Law. The reviewed Civil Procedure Law in 2012 added the “Cases on Realizing Security Interest” in the special procedure. This part provided a legal basis for realizing property right guarantee without litigation.The enforcement procedure of mortgage without litigation means that the court shall conduct the trials in a non-litigated way to fulfill the applicants’ hypothec. Then the enforcement court will carry out the execution compulsorily directly based on the judgement. As the Civil Procedure Law was reviewed in 2012, the enforcement procedure of mortgage without litigation can be acted in the trial of civil cases. However, there are still a lot of problems in reality because of its general definition.The objective of this study is to discuss the problems occurred in the enforcement procedure of mortgage without litigation based on the concept of procedural law and substantive law. This paper is divided into five parts. The first part is the summary of the enforcement procedure of mortgage without litigation. This part combines the characteristics of the non-litigated procedure and the fulfillment procedure of hypothec to characterize the enforcement procedure of mortgage without litigation. The second part shows the present situation of the enforcement procedure of mortgage without litigation and analyzes its problems from the time of legislative changes of mortgage. The third part presents some overseas research and discusses the legislation and institution of the enforcement procedure of mortgage without litigation in Germany, France, Korea and China’s Taiwan region. The forth part describes the specific processes of enforcement procedure of mortgage without litigation from starting, court inquisition, judgement to enforcement. The last part is about the improvement of the enforcement procedure of mortgage without litigation.