A Study On The Period Of Carrying Out The Right To Mortgage

"People’s Republic of China property law" article 202 nd of the "Supreme People’s Court on the application of the" People’s Republic of China security law "interpretation of several issues"(hereinafter referred to as the "security law interpretation")twelfth was modified to improve the exercise period of the mortgage system,will be the principal debt limitation as the mortgagee exercised during the length of the stick the guarantee from the property requirements,so as to avoid the mortgage debt limitation by affecting the malpractice.However,the clause itself is still far from perfect,for the property,the mortgagee exercised during the mortgage term after the legal effect,the parties agreed the mortgage term of validity and the mortgagee exercised during the lien and whether over issues such as Vif,resulting in the academic and judicial circles on these the problem is controversial,many differences.The first chapter of this article deals with the nature of the exercise of mortgage rights.The determination of the nature of the mortgage exercise period is the premise of this article,and the determination of the nature will affect the understanding of the legal effect of the expiration of the period.At present,there are different theories about the nature of the exercise of mortgage during the academic period,including the doctrine of limitation of action,the period of exclusion and the special period.The mortgage is a typical real right for security,is a kind of right,the right to claim the limitation system object does not apply,of course can not be right to form as the object of the scheduled period in addition to the application object,and the "property law" provisions of article 202 nd of the mortgage for the period is not a variable period in accordance with the features of the scheduled period.The mortgage right belongs to the category of property rights,the scope of which belongs to the period of lost right;right right loss period not in a certain period of time and not the right to exercise the right behavior makes their corresponding trust,the mortgagee not the principal creditor’s right within the limitation of action to mortgage is also consistent with the requirements,during the so that loss of rights should be a reasonable theory to explain the path.But again,these theoretical arguments belong to the choice of explanation in the purely civil law.The solution of this problem must consider the self consistency of the theory and the extent of the purpose of the interpretation.The second chapter of this article deals with the legal effects of the expiration of the mortgage exercise.Scholars and people’s courts are not unified in their views on the "non-protection of the people’s courts"."The mortgage duration that the exercise period after the people’s court is not protected,but mortgages still continue to exist,and the" mortgage right "is that the expiration of the period of protection is not that mortgage substantive rights have been eliminated.Judging from judicial practice,the doctrine of eradication occupies the leading position in the people’s court decisions.The existence of the dilemma is said on the mortgage registration to eliminate the burden of eliminating the mortgage,it can set the procedure of public summons the way to solve the dilemma of whether to say;eliminate the principal debt expiration of limitation claims continue to exist,and guarantee the principal creditor’s right of mortgage has been eliminated,we think we can the period of the principal debt limitation on the creditor’s rights and mortgage rights are characterized as limitation of action and the period of lost right way to resolve.Comparison of these two kinds of path,through the period of lost right explanation in theory eliminate,clear the nature of the right to mortgage and legal effect of the exercise period,and are consistent,in practice the court is also more convenient,by a referee would solve the collateral rights burden,so that a better be destroyed the choice of.The third chapter deals with the validity of the parties during the exercise of the mortgage.The 202 nd article of the property law only stipulates the validity of the statutory mortgage exercise period,and does not cover the agreed period of mortgage exercise.In combination with literal interpretation and purpose interpretation,the 202 nd law of the property law is neither arbitrary nor compulsory,but rather semi compulsory.Therefore,if the contract period is longer than the time limit for the main claim,then the agreement is invalid;on the contrary,if the agreement period is shorter than or equal to the limitation of action of the principal creditor’s right,the contract between the parties concerned shall be deemed effective.