On The Consummation Of The Procedure Of Security Real Right In China

In 2012,China revised the civil procedure law,which clearly stipulated the procedure for realizing the real right of security.However,for the realization of the procedure of real right for security,only articles 196 and 197 of the law of this ministry provide for its jurisdiction and ruling,and the content of relevant provisions is very simple,which makes the realization of the procedure of real right for security in judicial practice lack of applicability to some extent.Since the civil procedure law was revised again in 2015,the law has made more detailed provisions on the procedure of realizing real right for security,which provides legal support for the further application of real right for security.However,as far as judicial practice is concerned,the legislative provisions on the realization of the procedure of real right for security are not perfect and there are still many areas to be improved.In terms of the scope of the parties,the scope of the qualified applicant can be defined by referring to the practice in Taiwan,where the unregistered chattel mortgagee and construction contractor are listed as qualified applicants.With regard to the establishment of the scope of the respondent,if the guarantor and the debtor are not the same person,the principal debtor need not be the respondent if the collateral is provided to a third party.In terms of the rules of jurisdiction,it is possible to establish the regional jurisdiction rules based on the type of security real right.In addition,it shall be clearly stipulated that the parties shall not file jurisdictional objections.On the application and acceptance of the case,it is clear that the acceptance of the co-existence of personal security and property security,and the co-existence of property security provided by the third party,the creditor can freely choose to realize personal security or property security.If the creditor chooses to apply for the realization of real right for security,the court shall also apply to the procedure of realizing real right for security.It is clear that prior negotiation is not the prerequisite to start the procedure of realizing the real right of security.To establish the case of realizing the real right of security,we should charge a certain application fee according to the corresponding provisions,and set the payment standard as per the case.In the procedure of case hearing,first of all,the standard ofhearing a case is established as a form of review.In terms of review methods,different degrees of written review or investigation to verify the facts can be adopted according to the circumstances of the case.Secondly,the examination of the objection of the defending party of the application shall be standardized,and the standard for rejection of the objection shall be clarified.Finally,notice service is not applicable.Notice service is not the necessary procedure to realize the case of real right for security.On the relief of the respondent's objection,it is clear that the respondent's objection can be dismissed after another suit can be filed.The respondent shall file another suit without suspending the execution of the court's compulsory execution of the secured property.The respondent shall also have the right to raise an objection to the execution court for the court's improper execution.In addition,by referring to the action of execution objection of debtor in Germany,Japan and Taiwan,this paper tries to establish the action of execution objection of respondent in the procedure of realizing real right of security in China.In connection with the litigation procedure,the application of the party's procedural option is clarified,and the conditions for the mutual conversion between the real right of security procedure and the litigation procedure are established.