Study Of Special Civil Procedure Of Implementation Of The Real Rights For Security

As China’s market economy has growed quickly, creditor’s rights frequently arised between unfamiliar people, credit relationship has been out of the geographical constraints. As a institution to ensure the value of claims, real rights granted by way of security has incomparable advantages in uncertainty. Hence, to ensure the easy path to the realization of a security interest, to ensure that the creditors are able to sell secured property in a timely fashion, and the debt is paid quickly is to realize the problem in the proper meaning.According to China’s "Property Law" Article 196,mortgagee shall be entitled to apply directly to the people’s court to sell the collateral at auction, if the parties reach an agreement on the way of implementation of the real rights for security.But procedural law has no corresponding non-litigation procedures, on the other hand,the mortgage contract can not be enforced in accordance with laws directly as execution basis.Therefore,people should initiate legal proceedings in order to achieve the mortgage, resulting in high transaction costs of the real right of pledge contract. Lawmaker created “Special Civil Procedure of Implementation of The Real Rights for Security” in Civil Procedure to solve this problem.However, as the provisions are too simple and principled, civli court do not regularly use special civle procedures to achieve the real rights for security.,requiring creditor to initiate legal proceedings in order to confirm their rights.This lead to the risk of stranding of special civil procedure of implementation of the real rights for security. In January 30, 2015, the Supreme Court issued a " Interpretation of Civil Procedure Law".This law shall be effective as of Feburary 2,2015. "Interpretation" set the 17 provisions, characterizing special civil procedure of implementation of the real rights for security as special civil procedure,refining and perfected this procedure, to provide a scientific and comprehensive guidance for the parties to quickly implement a security interest by the special procedures system.Combined with judicial interpretation of the Civil Procedure, summarizing and analyzing theorists dispute, this paper presents procedural construction of special civil procedure of implementation of the real rights for security.This paper is divided into five section, including the legal basis,the appropriate scope of proper parties, the rules of jurisdiction,and the rules of objection remedies. The paper is divided into five chapters:The first chapter is the legal basis of special civil procedure of implementation of the real rights for security. To the meaning of this special civil procedure as a starting point, analyzing the nature of special civil procedure of implementation of the real rights for security.Through analyzing legal argument and legislative evolution,find the substantive basis and procedural grounds,and illustrate the value of special civil procedure of implementation of the real rights for security.On the other hand, discuss the nature of this procedure through comparing it with extraterritorial legislation mode.The second chapter illustrate the proper parties range of special civil procedure of implementation of the real rights for security. According to the provisions of the Civil Procedure Law, the proper parties of this procedure include the mortgagee, pledgee, the lien holder,the mortgagor, the pledgor, the debtor whose property is taken as lien and the owner.The third chapter analyzes jurisdiction of special civil procedure of implementation of the real rights for security,including the refinement and improvement of the grade jurisdiction,objection to jurisdiction, the litigation jurisdiction and territorial jurisdiction of this procedure. Through analyzing,this paper presents that special civil procedure of implementation of the real rights for security shall be governed by the grassroots people’s courts,and not be applied with jurisdiction transfer, grade jurisdiction, objection to jurisdiction and the the litigation jurisdiction.As for territorial jurisdiction, jurisdiction should be applied differently according to the registered and unregistered security. This paper also presents legislative principles of exclusive jurisdiction and several jurisdiction.The fourth chapter analyze the the essential fact in review of this procedure.Summarizing judicial review to the general elements and the special elements in fact and the corresponding materials of proof.For the above, the court should apply the formal review and substantive review,on the other hand, the verdict is not res judicata.The fifth chapter discusses relief programs for the proper parties. This chapter described and analyzed procedures of the parties to raise objection, if objection is dismissed,they may file an action of confirmation and the payment claim for relief, but should not apply for the retrial procedure.