On The Realization Procedure Of Real Rights For Security

Whether the procedure to realize security interest is quick or low-effective determines the effectiveness of security interest system.The realization of security interest is that when debtors fail to pay due debts or the situations of agreeing to realize security interest have taken place, the right holders have the right of deposing the collateral and compensation priority. The realization procedure of security interest has two meanings, general meaning and narrow meaning. The general meaning includes private relief and public relief, while the narrow meaning only means public relief. This paper is on the study of narrow realization procedure of security interest. Security interest in China has experienced vicissitudes from substantial law to procedural law. Although we have continuously improved the way of realizing security interest through Guaranty Law, Contract Law,and Property Law, it still cannot link up with procedural law. The 2012 Civil Procedure Law has made a break though from law to procedural law. It adds the realization procedure of security interest in the special procedure. However, only using two articles of law to stipulate the procedure to realize security interest is not practical, because there are still some problems such as unclear subjects of applications, confusing stipulations of jurisdiction and insufficient rights of respondents. Therefore, steady perfection is needed.The first section in this thesis is to summarize the theory and knowledge of the realization of security interest, and define the implication and conditions of the realization of security interest. The second section studies the legislative evolution of security interest and analyzes its improvement and breakthrough from The Guaranty Law,The Contract Law,The Property Law to Civil Procedure Law. The third section mainly discusses the property of the procedure to realize security interest. After analyzing several opinions and theories, this thesis concludes that non-litigation procedure is most helpful to realize security interest. Then, from the perspective of value and theory of law, the researcher analyzes the reasonableness of non-litigation procedure of security interest in China. The fourth section mainly focuses on the ways to realize extraterritorial security interest. Through comparison, this thesis concludes that when it comes to the realization of security interest of real estate,many countries adopt the public relief and that the private relief of personal property and mortgage to realize security interest is becoming a main trend. The five section aims to improve the realization of security interest in China. At the beginning stage of this thesis, the Judicial Interpretation of Civil Procedure Law has not been implemented yet. Therefore, mainly based on the stipulation of the procedure to realize security interest in Civil Procedure Law in 2012, the researcher puts forward the suggestions for perfection on the limit of applicants, the jurisdiction of security interest and the relief of respondents. And the suggestion part accords with the stipulations in the Judicial Interpretation of Civil Procedure Law.