The Effect Of Mortgage In The Condition Of The Principal Debt Limitation Is Expiration

Article 202 of the Property Law expresses that creditors should exercise their mortgage right during the limitation period of claims.Otherwise,the people's court will not protect the mortgage right."The people's court will not protect the mortgage right" is a self-created expression of China's Property Law.Whether the effectiveness of the mortgage right is to eliminate or whether the mortgagor obtains the right of defense from compulsory execution has always been a difficult problem to explain in theory and judicial practice.This article takes article 202 of the Property Law as the object of analysis,combines theory and judicial practice,and tries to find a reasonable and practical interpretation path.In addition to the introduction,from the perspective of structure,this paper is divided into three parts.1.Persistence Theory & Extinction TheoryThere are two explanations of "no protection" in theory and practice.The first one is "the elimination of mortgage without protection";the second one is "the loss of litigation without the elimination of mortgage".Specifically,scholars who advocatethe extinction of mortgage believe that in Article 202 of the Property Law,the mortgage and the claim of the principal claim share the same fate.The limitation of action of the principal claim is the period during which the substantive right of the mortgage is extinguished.The scholars who advocate that the mortgage right should not be extinguished believe that after the limitation of action of the principal claim,the mortgage right,like the principal claim,has only lost the right of action,and the substantive right still exists.The mortgagor can perform the mortgage obligation in private and can't claim the return with unjust enrichment.There are two kinds of doctrines under the theory of continuity.One is the theory of loss of the right to win a lawsuit,which claims that the creditor loses the right to win a lawsuit after the expiration of the limitation of action for the main creditor's rights.Secondly,the theory of invoking the right of defense advocates that the mortgagee can invoke the debtor's time-limited defense against the mortgagee when the main claim lawsuit expires.The two theories have common defects.They turn the mortgage without compulsory force into natural real right,make it the object of limitation of action as the creditor's right,subvert the essential characteristics of compulsory execution of the real right request court,and break through the civil law theory that the limitation system only applies to the claim of creditor's right.In judicial practice,the two theories under the theory of continuity will lead to the inconsistency of judicial practice.In view of the problem of whether mortgage registration can be cancelled or not,only 18 cases sorted out and summarized by the author are taken as examples.The judgments of the courts are different,the reasons for judging are different,and the authority of judicial adjudication is challenged.In contrast,the elimination theory is more conducive to the unification of the results of the judgment and the maintenance of judicial authority.Firstly,it is more appropriate to interpret "no protection" as "extinguishing mortgage" by means of literal interpretation,historical interpretation,system interpretation and purpose interpretation,and referring to foreign legislation.Secondly,the author compares the period of exclusion with the time limit system,explaining that the period of exclusion does not necessarily apply only to the right of formation and not necessarily to thefixed period,thus concludes that the period of limitation of action of the main creditor's rights is the period of exclusion of the mortgage right.After the period,there is no theoretical obstacle to the elimination of the mortgage right,which is a reasonable way of explanation.2.Discussions on the same issues of pledge and lienArticle 202 of the Property Law only stipulates mortgage,but does not involve pledge and lien.Based on the fact that pledge and lien are security real rights in mortgage,some scholars argue that Article 202 of the Property Law should be applied to pledge and lien by analogy,while some scholars oppose it.Some scholars also argue that since Article 202 of the Property Law does not stipulate pledge and lien,then the duration of pledge and lien should still apply Article 12,paragraph 2,of the Judicial Interpretation of the Security Law.The author thinks that the last point of view is the feasible way at present,but thinks that the compilation of real right in the subsequent civil code should make uniform provisions on such issues of security real right.3.Suggestions for revision of the lawThe compilation of the Civil Code is in full swing.The real right compilation is the key point.The revision of Article 202 of the Property Law should be the proper meaning of the title.Experts,scholars and judicial workers are also looking forward to the appearance of the new regulations.In view of the amendment opinions,the author summarizes three kinds: first,study the limitation of action plus exclusion period model in Taiwan;second,adopt the Druid model,in order to protect the mortgaged property from being impaired,grant the mortgagor a public notice to the court to urge the court to make a decision on the removal of rights;third,apply Article202 of the Property Law to all real rights secured,and at the same time "do not protect".” Replace it with "Eradication".The author agrees with the third opinion.Firstly,according to the cases sorted out by the author,although the judgments are not uniform,most court decisions are based on the principle that "mortgage has no practical significance.In order to make the best use of the property and safeguard the interests of the market economy,mortgage should be attributed to extinction" todetermine the extinction of mortgage,and mortgage registration should be cancelled.The court's judgment is deterministic and authoritative,and can not be changed overnight.The amendment of the law should take into account the court's usual judgment and its reasonableness.Secondly,the extinction of real right for security due to the expiration of the limitation of action of the principal creditor's rights conforms to the original legislative intention of the legislator and should be adopted.