Research On The Right Of Real Claim For Hypothec

It is granted to admit that there is the right of real claim in hypothec as a kind of property right. However, the Article 34 and 35 of Property Law cannot be applied to the right of real claim for hypothec directly. As a value-based right, hypothec has the core of dominating the exchange value of hypothecated property. However,realization of ownership and usufruct is based on the premise of possession of property. The difference between hypothec and ownership, usufruct lies in the fact that the pledgee doesn’t dominate hypothecated property directly.Due to the attributes above, the pledgee can neither exercise the right to claim for return of property as described in the Article 34 of Property Law nor the right to claim for prevention against interference and removal of interference as described in the Article 35 of Property Law. The three claims of real right above are designed for ownership and usufruct which are characterized by possession, and they are not the right of real claim. To the contrary, preservation right of hypothec can be deemed as the right of real claim for hypothec. Though the Article 51 of Guarantee Law has relevant provisions, but the relationship between the right of real claim and claim of creditor’s rights was not very clear, because at that time, Property Law wasn ’t enacted and the concept of differentiation between the right of real claim and claim of creditor’s rights wasn’t so popular. Therefore, the Article 51 of Guarantee Law involves differentiated provisions on the scope of restoring value of hypothecated property or increasing guarantee based on whether the decrease in value of hypothecated property can be attributed to pledger. Therefore it misinterpreted the claim for preservation of hypothec as a claim of creditor’s rights based on hypothec contract. After being enacted in 2007, the Article 193 of Property Law re-stipulated content about preservation right for hypothec and canceled fault elements in preservation right for hypothec, and inherited and completed the right of real claim stipulated in the Article 51 of Guarantee Law. Therefore, the right of real claim described in Article 193 of Property Law is the right of real claim for hypothec, andpledgee cannot enjoy the right of real claim stipulated in the Article 34 and 35 of Property Law.The right of real claim stipulated in the Article 193 of Property Law includes two specific types, and they are namely claim for restoring hypothecated property value and claim for preventing hypothecated property value from decreasing or claim for supplementary guarantee. When any behavior of pledger causes any risk that may result in decrease in hypothecated property value, pledgee may choose to exercise claim for preventing hypothecated property value from decreasing. When value of hypothecated property decreases because of pledger, pledgee may choose to exercise claim for restoring hypothecated property value or claim for supplementary guarantee in order to protect his benefits. As the right of real claim, the claim described in the Article 193 of Property Law shouldn’t be restricted by the statute of limitations. It is attached to hypothec and it doesn’t matter whether the decrease in hypothec property value can be attributed to fault of any party involved. In addition, the scope of claim for supplementary guarantee is the scope of decrease in hypothecated property value,and so as claim for restoring hypothecated property value. Forms of supplementary guarantee should include hypothec, mortgage and guarantee. However, when pledger or guarantor can provide only a guarantee, pledgee can neither restore hypothecated property value nor increase corresponding guarantee. Pledgee may request pledger to pay off debts ahead of time but cannot request realization of hypothec in advance.