Empirical Study On The Realization Of The Mortgage Right Of Financial Institutions

Mortgage, as its name implies, is the right of the mortgaged property. When the debtor is unable to repay the debt on schedule, the creditor shall have the right to give priority to the debtor or the third person’s mortgage according to the legal procedure. Mortgage is the creditor in the debt can not be normal to pay off the case, the start of the second sets of relief programs, is to make up for and reduce the loss of an important means. The realization of mortgage right is the purpose of carrying out the legislation of mortgage right, and it is the fundamental guarantee of the utility of the mortgage.Usually in realizing the mortgage right of main path has the following two basic modes:one is civil subject negotiate their own way to realize mortgage. That means that through consultation on an equal footing resolved by transfer of the distribution and the ownership of the mortgage, the mortgagee and the mortgagor. Under the self negotiation mode, the state power does not need intervention and intervention. The corresponding is to seek the way of the court and other public authority to realize the mortgage, also called the public power relief, mainly through the public power intervention and intervention to achieve the mortgage. According to whether the litigation procedure is applicable, it is divided into two kinds of procedure, the procedure of litigation and non litigation. In the court of public power is the leading mode, the mortgagee before the realization of the right to mortgage generally need to review or confirmation of a court or other public authorities, and therefore the mode of realization of hypothec is to national public power as the support and guarantee.In order to protecting the creditor’s interests and market stability. In China, from the 80s of the last century began worked out a series of laws and regulations to regulate, a relevant provisions in the general principles of the civil law and the guarantee law, when the mortgagor and the mortgagee cannot by agreement reached consistent, the mortgagee can through to the people’s court filed litigation to ensure the implementation of the mortgage. But once the mortgage of the legal proceedings, because the judicial process takes a long time, the realization of the mortgage is also faced with many uncertain factors, which is actually affect the protection of the interests of the mortgage.Subsequently, the introduction of the property law, enrich the way to achieve the mortgage, the mortgage can be applied directly to the court for the enforcement of the right to dispose of collateral.2012 revised "civil law" Article 196,197 in "special program" increased "real right for security cases" specialized section content, pioneered the provisions of the real right for security, the implementation of the program will be substantive law on the right in procedural law to be clear fixed. To further facilitate the practical operation, in February last year, the Supreme People’s court announced the "explanations about for the People’s Republic of China Civil Procedure Law" to realize the procedure of real right for security cases were further refine and supplement, including the contents of the application subject, the jurisdiction of the court, for realizing the real rights for security order, application materials, after accepting the treatment made direct and explicit provisions.In this paper, we mainly discuss the realization of the mortgage of the financial institutions, such as banks, loan companies and financing Guarantee Corporation. In practice, because of the financial institutions as a kind of main body participation in economic activities, for the mortgage of the right to the realization of the procedure is still in the research and exploration, in the specific case if you want to fast, conveniently realize mortgage still need is faced with enormous difficulties and challenges.This paper is divided into six parts:the first part, introduction, introduces the research background, the basic concepts and practical issues are briefly discussed and summarized. The second part, the basic theory of realizing the mortgage right.In this part, the author introduces the conception and basic characteristics of mortgage, and financial institutions with the characteristics of the industry, some of the important issues of financial institutions in the implementation of mortgage right. The third part, the comparative study of the legislation of mortgage right. Combined with foreign legislative examples, in contrast to the relevant legislation of our country, the realization conditions and ways of realizing the mortgage right and mortgage right are discussed. The fourth part, the obstacles of the realization of the mortgage right of financial institutions. The main financial institutions on the realization of mortgage in China facing the legal aspect and practice dilemma, and combined with specific case analysis and demonstration. The fifth part, the mortgage financial institutions proposal, proposed some suggestions and practical operation. The sixth part, the conclusion, to summarize and review the main points of this article.Through analysis and Research on the related theoretical and practical issues of the mortgage and mortgage, and for financial institutions to the specific economic activity subject, I hope to recognition and demonstrate the current environment of financial institutions realize the obstacle to the mortgage of the right to, and put forward feasible suggestions, so as to promote the effective realization of the right mortgage, the legitimate interests of the creditor protection and promote the smooth progress of the financial transactions.