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Research On The Rules Of The Implementation Of The Real Right For Security

Posted on:2016-10-15Degree:MasterType:Thesis
Country:ChinaCandidate:C L WangFull Text:PDF
GTID:2336330482958052Subject:Civil and Commercial Law
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This paper mainly studies the public and self-realization forces implementation rules of the real rights for security, and the main content of public forces implementation rules are non-litigation rules. The Property Law, The Civil Procedure Law and The Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of People's Republic of China established the implementation rules of the real rights for security through non-litigation procedure. This paper, guided by problems met in the implementation process of real rights for security, is trying to perfect non-litigation implementation rules and self-realization rules and through theoretical and empirical researches.This article body part is divided into five parts, the main contents are as follows:The first part focuses on the nature and functions of the real right for security. The nature of real rights for security is real right, and the function of the real right for security includes the right to change price and priority right for repayment. Right to change price is a reflection of property's dominance in the realm of security interest, while the priority claims the exclusive property rights. Accordingly,The holder of real rights for security may request injunction of selling off the property by people's court,or by himself after fulfilling certain procedure, and can enjoy a priority claim to the asset..The second part introduces the realization of China's current path of the real right for security, and review it's shortcomings. Realization rules of non-litigation are relatively simple. The basic rules of self-realization are missing, and whether security interest or guarantee contracts can be enforced through a notary were not clear.The fourth part focuses on the conditions and term of the realization of the real right for security. In order to achieve the realization of the real right for security, it should be make sure that effective presence of the main creditor, the presence of a security interest in effective, the debtor fails to perform due debts or circumstances agreed by the parties to achieve security interest occurred were not particularly limited legal and other conditions. It is not constitute an obstacle to achieve complete the real right for security if that the mortgagee and mortgagor are not negotiated the realization of mortgage, keep competing the real right for security, leasehold exist on collateral, security measures. After the transfer of the creditor's right, claiming of changing the real right for security should be applied promptly, and the real right for security shall not be exercised before the change. Mortgagee shall be exercised within a statutory period, otherwise the court shall not protect the mortgagee.The fourth part focuses on how to improve the non-litigation procedure regulations of the real right for security. The security right holder, the guarantor shall have the right to apply for priority construction projects to achieve the real right for security. Non-litigation cases are administered by courts in the guaranty's place or the real right's place, and special courts enjoy the jurisdiction over special cases, and the parties can raise objection to jurisdiction, the agreement is not applicable in jurisdiction. Courts take the responsibility of formal examination, and have powers of reviewing the whole case. Controversy of civil rights exists between the parties shall be resolved by another separate lawsuit.The fifth part introduces the self-realization regulations of the real right for security. And the paper proposed legal rules to reconstruct a legal system of the realization of the real right for security by parties themselves, such as improving the regulations of default noticing, the guaranty possession rules, and the guaranty disposition rules.
Keywords/Search Tags:the Real Right for Security, Mortgage, Pledge, Lien, Non-Litigation Procedure, Self-Realization
PDF Full Text Request
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