Research On The Guarantee Scope Of The Maxmium Amount Of Mortgage System In China

As a frequently applied way of guarantee among commercial subjects nowadays for financing,the maximum amount of mortgage has added vitality to economic development.However,imperfections and hysteresis in the laws of China have brought many problems when such system is put into practice.General Provisions of the “Civil Law of the People's Republic of China” prescribe only on mortgage till the “Guarantee Law of the People's Republic of China” came into effect when the maximum amount of mortgage system began to establish its position.Hereafter,“The Supreme People's Court on the application of the People's Republic of China Law on the interpretation of a number of issues” and the “Property Law of the People's Republic of China” are issued on the maximum amount of mortgage has been further defined.However,there is a lot of uncertainty about the application scope of the maximum amount of mortgage and the determination of the amount of secured claims in special circumstances,both theoretical and judicial.The whole idea of this paper combines the existing laws on the scope of the maximum amount of mortgage security provisions,in clarifying the purpose and significance of the mortgage mortgage system,based on the domestic scholars on the issue of controversial discussions and practical results,reference to extraterritorial experience in the purpose to further explore the rationality and solutions of the maximum amount of mortgage system at this stage in China.This paper is divided into four chapters.On the basis of the basic cases,the first chapter puts forward theoretical controversies in our country's maximum amount of mortgage system and judicial practice.In the context of this study,these controversial issues form the two conflicting issues of the maximum amount of mortgage,one is the application scope of the secured claims,which embodies the “qualitative” into which kind of creditor's rights should be included to one mortgage system;the second is the realization of the secured claim,which embodies the “amount” to what extent can it achieve on the realization of the secured mortgage claims.The second chapter first combs the stipulation of the current law on the scope of application of the maximum amount of mortgage,summarizes the background and trend of the previous legal provisions,and discusses the rationality of relevant provisions of the “Guarantee Law” and the “Property Law” on the basis of the subjective characteristics of the maximum amount of mortgage system in attempt to put forward certain point of view on this issue.The third chapter focuses on the realization of the secured creditor's right.The two domestic theories,“the maximum amount of claims” and “the maximum amount of the principal” have some guiding significance for the realization of the creditor's rights,but they are also flawed.The main reason lies in the confusion and blurred legislation in the scope of the realization and guarantee of claim.The fourth chapter mainly discusses the determination path of the maximum amount of mortgage.First of all,the application of the maximum amount of mortgage should adhere to the principle of general restriction by using general statement and the introduction of the new system to limit its scope of application;secondly,the concept of “maximum amount” should be made clear before realization of claims from the perspective of legislation as well as refining provisions to strengthen the protection of both parties.