Research On The Hypothec Effect After The Expiry Of Statue Of Limitation For The Principal Creditor's Righ

The effectiveness of the mortgage after the expiry of the main creditor's rights lawsuit should be perpetrated or eliminated.Judicial practice has always been a dispute.The different views of the scholars on the validity of the mortgage are also derived from the understanding of the nature of the mortgage.The limitation of action,exclusion period or the mortgage from the property based on the nature of the differentmortgage.For the main creditor's rights after the expiration of the effectiveness of the mortgage,it has a significant impact.The author believes that the nature of the mortgage during the exercise should be identified as the mortgage-based subordinate.So the expiration of the main claims after the expiry of the mortgage itself is not eliminated,but to make the mortgagee in accordance with the debtor's right to defend against the mortgage.If the mortgagor does not take this period as a defense,or if it voluntarily assumes the guaranty liability,the mortgagee has the right to give priority to the auction,sale of collateral income priority claims.When the mortgagor fulfill the right of defense,a clear refusal to fulfilled mortgage security liability,the mortgage began to eliminate.Mortgage is in the form of rights relative to the secured claim.There is no right from the right,"sovereign right" is only a separate right,so no right is no sovereign rights,but the main rights and rights from the relationship is not a phase.Where the sovereign right is not destroyed,the right can,for example,be destroyed by its own reasons,such as the loss of the collateral.However,if the right from the cause of their own that is destroyed,then belong to the mortgage from the property of the real misunderstanding.After the expiry of the litigation of the main creditor's rights,the main creditor's rights are not eliminated and the debtor is entitled to the right of defense.Mortgage as the main creditor's right from the right of course can not be due to the expiry of the lawsuit due to the elimination,based on the relationship between the principal and the right,the mortgagor also enjoy the right to claim the right of action.Therefore,from the right to enjoy the right of the right of defense is precisely the mortgage from the property to reflect,rather than the mortgage from the property misunderstanding.Based on the above reasons,this paper argues that the mortgage does not eliminate after the expiry of the limitation of the main creditor's rights,but rather gives the defendant the right of action.As with the validity of the debts of the litigation,the mortgagor shall enjoy the right of defense in the time of the expiration of the limitation of the main creditor's rights.However,once the mortgagor has exercised the right of defense of the right of action,the mortgagor may require the registration authority to cancel the legal basis for the mortgage.The mortgagee to exercise the right of action in the right of defense,it means that the mortgagor does not give up the interests of the defensive effect,and then the mortgagee is not the same as the main creditors "accept the retention." Therefore,when the mortgagee to exercise the right of defense after the right of time,the mortgage is not the loss of"public power relief',but the loss of the entity's mortgage rights.In short,after the expiry of the main creditor's rights lawsuit,the right of the defense occurs before the mortgagor does not exercise the time-effect defense,and the mortgage is eliminated after the mortgagee has exercised the defensive effect.This article demonstrates the validity of the mortgage effect after the expiry of the limitation of the main creditor's rights through three parts.In the first part,through the introduction of two typical cases,it shows that there is a similar case in the judicial practice for the validity of the mortgage after the expiration of the limitation of the main creditor's rights.Through the different identification of the two cases,"Protection of the intrinsic" meaning of the understanding of the analysis.The second part is the basic theory of the mortgage exercise period.Through the comparison of the concept of the exercise of the mortgage,the clarity of the nature and the comparison of the law during the exercise of the mortgages and the evolution of the legal system during the exercise of the mortgage in China,The basic logic provided for in Article 202,and then enrich the theory of justification during the exercise of the mortgage under the law.The third part is the analysis of the validity of the parties during the exercise of the mortgages.By affirming the way the parties have agreed on the mortgage period,the provisions of the period of the exercise of the mortgage are more perfect than before,with a view to perfecting Article 202 of the existing property law.