On The Period Of Exercise Of Mortgage

As for the period of exercise of the mortgage,Article 202 of the current Property Law attempts to amend and improve Article 12,paragraph 2,of the Act [2000] No.44.The amendment involves two aspects: one is to reduce the scope of application from the overall security interest to the mortgage,and the other is to shorten the period of exercise from “within two years after the statute of limitations for the secured principle credit” to “the period of the secured principle credit's statute of limitations”.However,there are still many problems to be clarified,such as the definition of the nature of the period of exercise of the mortgage,the effect of the agreed period of exercise of the mortgage,and the legal consequences of the mortgage being not exercised during the statutory period.The ambiguity of legal regulation has also led to differences in judicial decisions and theoretical arguments.First of all,the nature of the period of exercise of the mortgage shall be the effective duration of the mortgage after the expiration of the secured principle credit.Existing theories and refereeing paths are incapable of being able to overcome the limitations of the nature of the period of exercise of the mortgage.The statute of limitations has the defects that the applicable object is restricted,the mortgage is suspended for a long time,and the internal system of the security interest is violated.The exclusion period also has limitations on the application of the object to be restricted and the period to be invariable.Although there is no restriction on the application of the object to the period of invalidity,it is difficult to be competent because the applicable requirements are too strict and not recognized by the current law and judicial practice.The definition of the impact of statute of limitations has no substantive effect on the solution of the problem because it does not explicitly identify the nature of the period during which the mortgage is exercised.The definition of the effective existence period does not have the limitation of the applicable object,while avoiding the limitations of the applicable requirements and the recognition of the current law and practice.In terms of the legal effect,the effective duration can also avoid the embarrassing situation that the unsecured mortgage is unresolved under the statute of limitations.In addition,the effective duration is one of the durations of the rights,and the limitation of not determining the nature is also avoided.The effective duration is different from the mortgage period,the duration of the mortgage and the period of exclusion.Secondly,the agreement about the validity of the period of exercise of the mortgage shall be recognized,but the period of the agreement shall also be subject to the necessary restrictions on the starting point,the form of the agreement and the registration requirements.The validity of the period of exercise of the mortgage cannot be denied for reasons such as the statutory right of property,the purpose of the mortgage,the subordination of the mortgage,the difference between the mortgage and the guarantee,and the doubt that the guarantee cost is significantly increased.It is acknowledging that the validity of the mortgage period can satisfy the autonomy of private law,and can also urge the active exercise of the mortgage,promote the best use of the mortgage,and have the support of legal interpretation and comparative law.The starting point of the agreed period of exercise of the mortgage shall be limited to the maturity date of the secured principle credit,and the agreed period shall be before the completion of the statute of limitations for the secured principle credit.The agreement on the period of exercise of the mortgage should in principle be in writing.The agreed the period of exercise of the mortgage shall not be subject to the validity of the property right during the period of exercise,but may only bind the parties who made the agreement,but the registration notice may impose binding force on the third party.The agreement on the period of exercise of the chattel mortgage may also be subject to the effect of the property without registration.With regard to the period of exercise of the mortgage,if there is an agreement,the agreement shall be made,and if there is no agreement,the agreement is unclear or the agreement is invalid,it shall be directly regulated according to the statutory exercise period stipulated in Article 202 of the Property Law.Thirdly,If the mortgage is not exercised within the statutory period,the mortgage is extinguished.In other words,the interpretation of the “non-protection” in the second half of Article 202 of the Property Law should be based on the theory of actual elimination,and draw on the referee's path of “the actual mortgage and the elimination effect not exercised during the statutory period”.It should be understood that the mortgage right loses legal coercive power because the secured creditor's rights are ineffective,and if the mortgagor voluntarily assumes the guarantee liability,the law does not interfere.If the mortgagor refuses to assume the guarantee responsibility,the mortgage right at this time is actually not the same as the elimination effect.In order to exert the value of the use of the property and exclude the nuisance caused by the registration of the mortgage to the mortgagor,it should be determined that the mortgage that was not exercised during the statutory period was eliminated.