On The Procedure Of Realizing Real Security Right

In 2012, the civil procedure law was revised. There is a section which is used to adjust the realization of real security right in the special procedure chapter. Then, the supreme people’s court promulgated the civil procedure law interpretation. It has more detailed stipulation to the realization of real security right. However, the provisions of realizing real security right is not perfect. It still needs to further refine and improve. The purpose of this paper is to demonstrate that the procedure of realizing real security right has two legal bases on the current legislation. Firstly, it is the value level, aiming at cost and efficiency. Secondly, it is the level of theoretical basis, aiming at basic legal theory of non-lawsuit procedure, the nature of the real security right and the principle of public summons. It is necessary to be perfect for the procedure of realizing real security right. In ruling step, aiming at the determination of jurisdiction, the scope of parties, the status of the respondent, the treatment of respondent’s entity objection. Among them, the establishment of all kinds of real security rights shall be typed, and draw the corresponding standard respectively to determine the jurisdiction. According to the explain theory perspective, on the Article 196 of civil procedure law, the secured party including mortgagee, pawnee, lien and other people including the mortgagor, the pledgor and the debtor whose property is retained. Based on the litigation economy and find out the case fact to consider, it is necessary to list the respondent in the procedure of realizing real security right. And it should be denied that the interested party can be used as the respondent. According to the model of suit and non-lawsuit, real rights for security existence or not and the controversy of guaranteed creditor’s rights scope and amount belong to entity dispute. The parties should make it out with the procedural jurisprudence. In enforcement procedure, aiming at the relief of respondent’s entity objection. It is possible that explaining the Article 374 of civil procedure law interpretation, according to different situation to build relief mechanism respectively for the respondent’s entity objection.