On The Presumption Of The Mortgage Right Invalidation In Execution Procedure

Mortgage is the right of the creditor to the property or right provided by the debtor or a third party as security when the debtor defaults on his debts.Mortgage plays an indispensable role in modern society especially in financing.The value of mortgage system is to guarantee the realization of creditor's rights.In the process of civil execution of the people's court,the emphasis is on how to make the creditor's rights clear.However,in practice,the function of protecting creditor's rights by mortgaging property is not realized for various reasons.The mortgagee is negligent in implementing the mortgage right or the mortgage property cannot be realized,and the mortgagee does not agree to accept the payment of the debt with property,which leads to the claim being unable to be paid,because the uncertain status of the mortgage property and interest still objectively damages the benefits of the debtor,the mortgagor and the guarantor.This paper from the mortgaged property in the protection of creditor's rights when encounter and problems,the reason that is attributed to the mortgagee is the origin of the presumption of the mortgage right invalidation,and the execution objection can replace the mortgage presumption invalidation were analyzed,and the presumption of hypothec invalidation from four aspects,proposed meet certain conditions of the presumption of the mortgage right invalidation in execution procedure to strengthen the mortgagee prudent investigation and analysis of the mortgaged property evaluation responsibility,eliminate the mortgagee of the priority of compensation,the debtor,the mortgagor,the guarantor from part of creditor's rights.This paper tries to put forward some tentative ideas on the scope of the subject of the mortgagee,the applicable conditions of the presumption of the mortgage right invalidation,the legal consequences,the disposal procedure and the remedy way of the presumption of invalidation,so as to bring some benefits to the theoretical research and judicial practice.This paper is divided into 3 chapters except introduction and conclusion.Chapter one:analysis of the status quo and reasons of the failure of mortgage right to guarantee the realization of creditor's rights.Based on the case of the Supreme People's Court,this chapter analyzes the adverse consequences for the debtor,the mortgagor and the guarantor caused by the inability to realize the mortgage property or the failure to accept the payment of debts by mortgaged property,and probes into the current situation and reasons of the inability of the mortgage to guarantee the creditor's rights.Chapter two:try to demonstrate the theory of the presumption of mortgage right invalidation.This chapter analyzes the demarcation of the mortgage right,the real right and the creditor's right,and whether the execution objection can replace the presumption of the mortgage right invalidation.In order to strengthen the legitimacy of the presumption of the mortgage right invalidation,the theory of equality of creditor's rights,the principle of fairness,the theory of commercial risk and the rule of predictability are demonstrated.Chapter three:the system design of the presumption of the mortgage right invalidation.In this chapter,the concrete contents,procedures,remedy way and legislative perfection of the presumption of the mortgage right invalidation are constructed.