Research On The Exercise Period Of Mortgage

Exercise period of mortgage is an important portion of mortgage regime,which concerns mortgage's application in practice.Since the implement of Article 22 of The Property Law,controversy in judiciary continuously arise,and there have been many analogous cases that experience different judgment.The controversy focus on three aspect.First of all,what is the nature of mortgage?Second,after the passing of exercise period of mortgage,does the mortgage vanish?Third,after the passing of exercise period of mortgage,is the mortgagor entitled to the right to logout register.In this paper,through sorting out the cases,we find that the controversy over the exercise period of mortgage can't be solved by legal interpretation.Instead,the root of the problem is the choice of legislation.Article 22 of The Property Law imitates French legislation,so a period of exercise similar to the limitation of action is provided for the mortgage.However,the statute of limitations does not apply to the right of domination in China.This creates a system of contradictions.In addition,the limitation of action in China is much shorter than that in France.If the exercise period of the mortgage right is equal to the time limitation period of the main creditor's right,It would be detrimental to the protection of creditors.Germany's mortgage system has its particularity.The trend of the securitization of mortgage right has brought out the strong independence of mortgage.That's why the exercise period of mortgage isn't under influence of creditor's rights in German.But our country doesn't have such a foundation.In comparison,the legislation example in Taiwan is more consistent with the actual situation of the mainland.It stipulates that the period of exercise of mortgage is a period after the creditor's right limitation period.The rule is not in conflict with other institutions,but also in the interests of all parties,so it's a better choice.Article 22 of The Property Law is mainly concerned with the subordination of mortgage,but that is not enough.First of all,the subordination of mortgage is confined to generation,elimination and transfer,but the mortgage is not extinguished by the statute of limitations.Mortgage doesn't have subordination in the statute of limitations.What's more,the mortgage is the right of domination,and its realization is relatively independent from the main creditor's right.At last,through the analysis of the right of pledge and lien,the exercise of these two kinds of security property rights are not affected by the limitation period of the main creditor's right,which indicates that real rights for security is not under the influence of creditor's right.Thus,The provisions of article 202 of the property law are special,and the rationality of article 202 of the property law cannot be proved from the subordination of the property of mortgage.This paper is based on comparative law,believing that we should return to the legislation of Taiwan on the exercise period of mortgage.