The Research Of Security Interest Study On The Non-litigious Procedure

Economic development is the material basis of social progress,the relationship between debtor and creditor can both activate the economy and restrain the economy.Generally speaking,the market economy has proved that secured claims are more secure than the unsecured claims.Therefore,the existence of security interests can protect the debt,activate the economy,promote the transaction,and activate the prosperity of the market.Whether the real right of security can be realized with high efficiency,fast speed and low cost or not,it will directly affect the interests of the creditors,and decide the function of the system of security property rights.In the "Civil Procedure Law" issued on August 31,2012,it clearly provides the realization of security procedures.Meanwhile,it provides legal support to guarantee the real right and realize the harmonious docking of procedural law and substantive law.However,a small number of legal provisions can not provide good guidance on judicial practice,and make the realization of security rights non-litigation procedures tortured.Subsequently,the District Court promulgated the views and the Supreme People's Court issued a judicial interpretation,and it makes real rights for security program provisions for further refinement,which is more specific and clear.Because the program has just been set up,a rough outline of the law led to the different understanding between theory and practice.As the procedure has just been set up,the different understanding between theory and practice caused by rough legal provisions and diversity of trial practice will be a variety of complex issues.In order to explore the program,this paper embarks from the basic theory and combines with the actual situation.This paper consists of five parts,which mainly analyses some problems in the process of security interest from the perspective of procedural law.The first part: The problem.This part analyses the real guarantee of non-litigious procedure to implement some problems in the theory and practice.There are some deficiencies in the rules of procedure,for example the court review standards and interests of the parties and some other defective aspects.The second part: Part of the basic theory.This part starts from the relevant concepts of the non-litigation procedures.Then it analyzes the basic value of the non-litigation procedure and the nature of real right for security judgment of res judicata,in order to lay the theoretical foundation for solving the problems in the guarantee of non-litigation procedure and path perfection.The third part: A study on the legislation of different modes of realization of security real right and the development of legislation in China.It is mainly presented by self relief,public aid force,and eclectic model.Independent relief exists in France,the United Kingdom,the United States and other countries;the public relief exists in Germany,Japan,Switzerland and other countries,and the compromise model exists in China's Taiwan region.Public aid force includes litigation judgment mode,direct application execution mode and the mode of non-litigation.A general review on China's security program indicates that it is a kind of both self relief and public relief for the judicial protection of the doctrine of “self-help”.The fourth part: This part discusses the difficulties in the judicial practice of the security interest in China.The real guarantee of the non-litigious procedure has many problems in the course of application.For example,the rules of procedure are not perfect;the standards of the case review are not clear;and it lacks of security mechanism.The fifth part: This part discusses the perfection of the non-litigation procedure.First of all,in the process of starting process,we should be clear about the application conditions,improve the competence of the court,be sure of the scope,and introduce a limited announcement served.Secondly,the court should confirm the standard of review.Meanwhile,the respondent,the applicant and the interested party shall be provided with relief channels.Eventually,it is suggested that the notarized guarantee contract can be used as the basis for implementation,and attention should be paid to protecting the rights of the respondent and the outsider during the execution.