| The realization of real right of security is of great significance to the development of the value of security system,the stimulation of market vitality and the promotion of economic growth.How to construct an efficient and rapid procedure to realize the real right of security is the key and difficult point to set up and perfect the system of real right of security in various countries.In our country,the real right of security is traditionally realized by litigation procedure,which is questioned because of the cumbersome procedure,long time and lack of flexibility.In 2012,the civil procedure law added a special procedure for the realization of real right for security,which changed the traditional way and provided a new path for the realization of real right for security.In 2015,the judicial interpretation of the civil procedure law further detailed the procedure specification and enhanced the operability of the procedure.However,the above specification cannot meet the practical needs and still needs to be improved.In view of this,this paper,on the basis of legal analysis,empirical investigation and foreign experience reference of the special procedure of real right for security in our country,puts forward corresponding Suggestions for improvement according to the basic legal principle of special procedure.The full text is divided into three chapters as follows:The first chapter is about the present situation of legislation and judicature of real right for security in China.This chapter consists of three: the first section of civilsubstantive law and procedural law on legislation carding analysis,thought the property law referred to "petition the people's court to auction or sell off" program belongs to the non-lawsuit procedure in nature,at the same time pointed out that the mortgagee shall apply for realizing the mortgage right by "mutual agreement" and "not reached an agreement is implemented as a" front necessary procedures.The second section makes an empirical analysis.Taking "article 196 of the civil procedure law of the People's Republic of China" as the key word,a total of 21,388 records are found by searching on the Chinese judgment online.Through statistical analysis of the above cases,the following four points are summarized: first,the number of cases is reduced;Second,the procedure application subject is single;Third,the case area distribution is uneven;Fourth,the program runs disorderly and random.On the basis of investigating the present situation of legislation and judicature,the third section of this paper puts forward six problems of the application of this procedure: first,the subject is not comprehensive.The application qualification of the relevant subject is to be clarified,such as the successor of the real right of security,the construction contractor,etc.Whether or not to list the respondent and the scope of the respondent shall also be clarified by law.Second,the jurisdiction is not meticulous.Our country law to different types of security real right to match with different regional jurisdiction provisions,it can be said that the consideration is comprehensive.However,in response to the reality of the complex types of security property is still in short supply.In addition,whether the cases are all accepted by the basic court and whether the respondent has the right to file an objection to jurisdiction is controversial.Third,the court review is not clear.The review is a central part of the special procedure,and a decision on whether to allow the auction can only be made after a court review.As for the examination standard,there is no clear stipulation in the law of our country,and as a new system,the judicial practice experience is less,which leads to become a big problem in the trial practice,and also the most chaotic part of the court operation.The main dispute is the application of formal or substantive examination.In addition,another core issue is how to deal with the objections of the respondent and the relevant interested parties.At present,there are at least fivedifferent modes of operation in practice,which is detrimental to the authority of the court and the establishment of legal order and dignity.Fourth,inadequate relief.If the applicant's application is rejected,another lawsuit can be filed,and the objection to the licensing ruling lacks clear remedy.Fifth,the process is not smooth.The connection between the litigation procedure and the special procedure and the conversion between the special procedure and the execution procedure are unreasonable.Sixth,other problems.The application of the special procedure to service by notice,the conciliation system and the fee rate of the case shall also be studied and determined.The second chapter is about the realization of the extraterritorial real right procedure legislation and the enlightenment to our country,a total of two sections.The first section is the legislative examples of relevant countries outside the region and its enlightenment to China.On the basis of introducing the legislative cases and legislative models of relevant countries outside the region,this section focuses on the public remedy system for the realization of real right for security in France,Germany and Japan,and summarizes the enlightenment of China's special procedures from the two aspects of legislative compilation and legislative norms.The second section is our country Taiwan area legislation example and the enlightenment to our country.The special procedure of real right for security in our country is non-litigation procedure in nature,so on the basis of introducing the legislative cases of Taiwan which are both non-litigation procedure in our country,and combining with the legal theory and judicial practice in our country,we discuss the two specific issues: the examination standard of the court and whether the court has juridical power.The third chapter is our country realizes the security real right special procedure consummation opinion.This chapter is a response to the questions listed in chapter 1.The first section is the main part.This paper holds that the successor of security right,construction contractor and other security right holders also have the right to initiate special procedures.The principal debtor should not be listed as the principal applicant when the guarantor and the principal debtor are different subjects.At the same time,other interested parties are not eligible for the respondent.Section 2 provides forjurisdiction.With regard to hierarchical jurisdiction,special procedure cases should be under the jurisdiction of the basic people's courts.As for the regional jurisdiction,more detailed provisions should be set up according to the different characteristics of the real right of security.Section iii is the review procedure,which is the core and difficult part of the special procedure.According to the general understanding of Chinese scholars,the object of formal review is procedural matters,while the scope of substantive review includes procedural matters and substantive matters.In this paper,it is considered that both of them take the substantive legal relationship as the object of examination,and the difference is only in the degree of examination,which affects the judgment.The decisions made by the court after formal examination are enforceable but not judgmental.And on how to deal with the respondent dissent when the court based on the analysis in the practice of five different operating modes: is proposed on the basis of the court to the substantive objection shall be handled in special applications,and to the related entity objection has no right to trial,dealing with its judgment whether to have substantial controversy,namely whether "recognition" case has substantial controversy and disposal.Specifically,if the case is identified as a substantive dispute,the court shall reject the application and inform the court to file another lawsuit.Where there is no substantive dispute,the procedure shall be unimpeded.Section iv is the relief procedure.A determination based on a special procedure is not prejudicial and proceedings shall be allowed for redress.At the same time,it should be made clear that the special procedure does not apply to the retrial procedure.In addition,at the same time,we should strengthen the regulation of abuse of rights.The fifth section is program connection.First,there should be a two-way conversion between the special procedure and the litigation procedure.In addition to the conversion from the special procedure to the litigation procedure,the litigation procedure under certain conditions should be allowed to be converted to the special procedure.Second,the special procedure should automatically start the execution procedure after making the license ruling,instead of the application for execution.Section 6 is for other questions.This section demonstrates three specific rules: first,service by public notice should be applied to special procedures;Secondly,the mediation system should be applied to the special procedure;Thirdly,special procedures shall charge application fees on a piecemeal basis. |
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