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Study On The Program To Achieve The Security Interest

Posted on:2015-08-31Degree:MasterType:Thesis
Country:ChinaCandidate:X J LiFull Text:PDF
GTID:2296330464951385Subject:The civil procedural law
Abstract/Summary:PDF Full Text Request
Security interest is an important civil rights, designed to protect the creditors, which is very common in national economic activity and civil legal acts, but its implementation program lack adequate legal basis. Although the provisions of "Property Law" stipulate that the mortgage can be realized by the way of Consultations among parties and judicial application, and the unilateral implementation of the right people for lien and pledge right, but this specification provides insufficient supply on legal norms exists in practice. Practical realization of a security interest in a lot of cases have the judicial application demands, and the rules of "Civil Law" to achieve security interest are too principles and broad, resulting in many problems in the program, such as the scope of the parties is unclear, collateral conditions of realization of the program is unknown, the impact of whether the parties agreed to the program or not is not clear, the way of the court’s review and rule on the case be is not clear, and so on, the paper will be analyzed and answer these questions.This thesis consists of an introduction, conclusion and chapters.The first part focuses on the concept and conditions to realize a security interest, and analyzes the practical value and theoretical foundation of the program. The program which is aim to realize a security interest is through the particular way that the rights of people can obtain priority claim on the price of a security interest so that to achieve debt, and dispute can be resolved through non-litigation procedure in the low-cost, highly efficient way, final promote rapid run economic activity. The program is not only in line with the value of non-litigation procedure, also rooted in the Public Credibility principles of the property law, with theoretical and legal basis.The second part focuses on Comparative study of related systems abroad. Abroad security interest litigation mainly divided into three kinds of legislation: litigation referee mode, application auction mode and non-litigation cases referee mode. Although the litigation referee mode has unbearable cumbersome procedures, but for French property in terms of changes in patterns of meaning doctrine is still regarded as a fair and objective manner. The auction model relies on direct application of effective remedies to improve real estate registration system and afterwards. For the purposes of our current legal system design and background, the use of non-litigation procedure mode is more suitable for China’s current legislative alignment and institutional convergence.This third part focuses on the legislative history and the existing problems of the security interest. The article is mainly using the 196 and 197 provisions of "Civil Law" and the relevant provisions of the "Property Law" as the focus of analysis object, noted that the current security interests program mainly exists the following problems: the scope of the parties is not clear, the condition to achieve the security interest is not clear, the program to the after pick of the security interest people is not clear, the treatment of the review and rule is also not clear.The fourth part of this article is mainly made recommendations for legislation to improve the problem. This paper argues that the applicants to realize the program of the security interest should be the mortgagee, the pledge and the lien holder, the pledge, the debtor of the lien, the mortgagor, as well as other people who have stakes. The Court’s trials to such cases are mainly formal examination, whether reaching an agreement between the parties or negotiation does not affect the admissibility of the case. In addition, China should establish a system of public notice period, in order to protect the rights of an interested party.
Keywords/Search Tags:security interest, the program to achieve, non-litigation procedure, agreement, formal examination
PDF Full Text Request
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