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

In recent years,China's market economy flourished,the occurrence of various types of economic transactions gradually from the geographical and acquaintances of the restrictions,the realization of the rights of creditors are often difficult to achieve the risk.As a system that can ensure that claims are protected from damage or damage minimization,the role of security interests in the market economy environment is more and more significant.And the contents and types of security interests have also been considerable development.Therefore,it is necessary to ensure that the realization of the security right is convenient and unobstructed so that the creditor can give priority to the price of the secured property right,which should be one of the research topics to realize the security right system.According to the provisions of Article 195 of Property Law of the People 's Republic of China: "Where the mortgagee and the mortgagor have not reached an agreement on the realization of the mortgage,the mortgagee may request the people 's court to auction and sell the collateral.However,procedural law has not been accompanied by legislation and its response,until the 2012 revision of the "Civil Procedure Law" in Article 196,Article 197 to create a secured property rights case procedures,to fill this gap.In spite of this,because the law is relatively simple and general,the court in the judicial process for the application of the general conservative approach.Many courts still require the guarantor of the right of the security of the security of the effectiveness of the first to confirm the proceedings.The realization of the special procedures for security interests in the judicial practice is facing the danger of being shelved.It is found that the German legislation adopts strict mode of public power relief,France adopts the relative public power relief mode,the US legislation adopts the self-relief mode,and Taiwan region has a more detailed and perfect non-litigation legislation.China can learn from other countries and regions of the relevant legislation to achieve the special procedures for the security of the law,the implementation of the most in line with national conditions of legislation.In 2005,the Supreme People's Court promulgated the Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China,which came into effect on February 4,2015(hereinafter referred to as "the judicial interpretation of civil procedure law").The Judicial Interpretation of Civil Procedure Law provides for the provisions of Article 204,Article 205,Article 462,Article 361 to Article 374,which are based on the two basic provisions of the Civil Procedure Law.The basic rules for the realization of the special procedures for the security of property rights provide another remedy for the creditor to realize the security right through the national public power.But the realization of security special procedures are still in the legislation there is a lot of controversy and inadequate,leading to the practice of the courts around the line is not unified.It needs to be improved and modified accordingly.In the application process,first of all,the legal definition of the scope of the applicant is not clear."The judicial interpretation of the Civil Procedure Law" does not specify whether an unregistered chattel mortgagee,movable property floating mortgagee and the right pledgee as a qualified applicant.We can learn from the practice of the Taiwan region,as a qualified applicant but the court to judge the part of the decision should be reduced to the parties without controversy.Secondly,there is a lack of legal norms regarding the specific scope of the respondent.In the case of the review of the case,we need to clear the mortgagor and the mortgagee first consultation is not to apply for court auction,the sale of secured property prerequisites.And it needs to establish a review of the combination of formal and substantive reviews: For the registered security of the property court should take a form of review mode,review the substantive controversy of the parties supplement.On the other hand,the unregistered security interests should be subject to a substantive review and a rigorous review of the substantive dispute between the parties in respect of the security interests.Finally,the law needs to be clearly defined to use the announcement.This is conducive to the protection of the legitimate rights and interests of creditors,and better promote the realization of the special procedures for the realization of security rights.