Study On The Law Applicable To Special Procedure Of Realizing The Security Interest

With the development of economy, the relationship between creditor and debtor becomes more and more frequent. As an effective way to guarantee the creditor’s rights, guarantee system has been paid more and more attention. Creditors are most concerned about is how to achieve security interests, and which also the core content of property guarantee system. Although in the "property law" in the people’s Court on the request for auction, the sale of the provisions, but due to the lack of procedures for the support of the corresponding, in practice, and did not apply. 2012 revised "Civil Procedure Law" solves this problem, adding a section "to achieve real right for security cases" in special procedure, in order to respond to the provisions of the property law, realized effective connection between substantive law and procedure law, provides a new path for the realization of the real right for security. Because the law is too principled and general, so the effect is not ideal in practice. In 2015 Supreme People’s court immediately promulgated by the Supreme People’s Court on the application of the "the People’s Republic of China Civil Procedure Law interpretation "(hereinafter referred to as the " judicial interpretation "),to make a more detailed explanation, providing more clear basis for the judicial practice.The vitality of law lies on the implementation, facing of the complex and diverse cases in practice, the accurate understanding of the law is the premise of scientific application. In this paper, through the interpretation of the text, the interpretation of the system, the purpose of interpretation of the provisions to understand the law, in the analysis of theoretical and academic point of view, based on the specific views, and give ideas of the application of law. Put forward some suggestions for solving the problems, which exist in the practice of law. This article mainly includes the following five parts:The first part is the introduction part of the article. First of all, it explains the background and significance of the topic, and then introduces the research status of the field inside and outside. Finally, it points out the research methods and the innovation points of the thesis.The second part is an overview of the special procedure of realizing the security interest. Firstly, it analyzes the meaning of the special procedure of realizing the security interest. Then this article through to the realization of the guarantee real right nature of the case analysis and system interpretation method, demonstrates the realization of the nature of the real right for security special procedures for non contentious procedure. Finally, based on the meaning and procedural characteristics mentioned above, the realization of the realization of the special value of the security property is analyzed.The third part introduces the present situation of the legislation of realizing the real right procedure for the realization of the foreign security. The legislation of the United States the obviously prefer the relief of private force; Germany on real estate and mortgage, by the most stringent public relief pattern; legislative mode of Taiwan area of our country and our most similar provisions can be through non contentious procedure for realizing the real rights for security. Based on the analysis and comparison of the foreign experience, combined with China’s laws and regulations, put forward to perfect the private relief proposals.The fourth part is the understanding and application of the special procedure of the realizing security interest in our country. Based on the analysis, understand the law based on, combination of theory and practical point of view, of application, examination and determination the contents of three aspects were research and discussion, in order to promote the implementation of real right for security special procedure suitable. Explain and explain the scope of application of the "judicial interpretation", and make clear the conditions for the application. Determine the realization of the security property special procedures for the review of the review criteria should be in the form of review, a detailed review of the contents of the review. Further the nature and form of security interest in the implementation of special review program based on the standard, no clear verdict of res judicata. The relief to the wrong decision, mainly introduces the way of objection, in addition, the author thinks that can not through the retrial and the case of third people to withdraw the lawsuit relief.The fifth part is mainly focus on the issues and disputes about the application of special procedure of realizing the security interest. specific issues include the scope of the applicant is not clear, about whether applicable notice served on the practice is not unified, case fees confusion, ruled that the representation of documents over problems, to guarantee the rights and interests of relief is inadequate. After that, under the existing legal framework, through the analysis of law, theory and practice point of view, combined with foreign experience and put forward the following suggestions. Determine the principal debtor as the applicant and other interested persons should not as the respondent; to define applicable served notice; ruled instruments only to elements of the form to express; by constructing the system for the lawsuit of debtor’s objection to improve of the guarantor of security; case of uniform charging standards, at this stage should not receive case application fee, the author suggests in the legislative modification process is determined according to the property of the case acceptance fee of 1 / 3 of the standard charge.