On The Claim Of Additional Guarantee

The claim of additional guarantee means that the right holder can request the guarantor to provide additional guarantee when the value of the guarantee decreases,so as to guarantee that the value of the guarantee can still satisfy the right of the guaranteed creditor's right when sell at the current price.For essence,the additional mortgage is not a new guarantee,but a guarantee offered upon original guarantee,so it's call “additional guarantee”.There are different regulations on the exercise of the claim of additional mortgage in the comparative laws,and there are many disputes about its character,content,exercise method and so on.For the reasons why the claim of additional mortgage established,most of the literature don't exist a lot of discussions,the common reasons are based on the guarantor's value maintenance obligation,according with the will of the parties and social and economic utility.The latter two are not controversial,but there are different opinions on the source of the guarantor's value maintenance obligation.A part of them who refer to that the obligation is based on the nature of value right,who refer to that it is based on the nature of real right and others refers to it's based on the legal collateral obligations which arising from the guarantee relationship between parties.In terms of the nature determination of the claim of additional mortgage,there are two opposing opinion in theories: the claim of real right and the claim of creditor's right.The theoretical basis of the former lies in real right nature of the real rights guaranteed,but the latter references the theory of “guarantee relationship” in Japan.Because the theory of “the claim of creditor's right” is difficult to solve the problem that how to exercise the claim of additional mortgage between the legal mortgagees without contractual relationship and between the agreed mortgagee and the subsequent acquirer of the mortgaged property,in addition the other two advantages put forward by scholars are difficult to be established,so it is not adopted.However,the theory of “the claim of real right” can not only accept the above view that “the obligation of value maintenance is based on the real right nature and the value right nature of real rights guaranteed”,but also lead to the following conclusions that “the guarantor does not have the claim of additional mortgage”,“the case that cannot be attributed to the guarantor can also request additional mortgage”,so it is adopted.There are also many different opinions on the relationship between the claim of additional mortgage and other claims that protect real rights guaranteed.It should be recognized that the relationship between the claim of additional mortgage and the claim that value of guarantee returns to the original state,the relationship between the claim of additional mortgage and real subrogation is competing,and negated the competing relationship between the claim of additional mortgage and the claim of tort damages.Because of the difference in legislations and theories,the content of the claim of additional mortgage is one of the most complicated issues.It mainly contains four constitutive elements: the existence of a security rights,the reduction of the value of the security right which endangers the security right,the existence of a cause of harm,and the competent subjects.As for the existence of the security right,only when the security right has been established,the right holders start to have such claims.If he only made the advance notice registration,he cannot make such requests.Besides,rely on the previous analysis,lien does not fall within the scope of the application for additional security claims.As for the reduction of the value of the security right,it should be limited to the reduction of objective value,and add the judgment criteria "endangering the security property right".As for the existence of a cause of harm,the article believes that regardless of whether it can be blamed on the guarantor,once the value of the collateral is degraded,the guarantor can request for an additional security.As for the competent subjects,since it is a claim for real rights,only the security holders have the additional security claims in the sense of this article.The last part of the article discusses the exercise and legal effects of the additional guarantee claim.As for how to excise this claim,the period of proposal should be end until the auction,there is no need to set another certain period.Only the mortgagee and the pledgee have additional guarantee claims.Such claims shall not resort to legal proceeding.As for the legal effects,it should be denied that the guarantor can set up a lien to provide new security right,but it should be sure that the guarantor can set up mortgage,pledge and promote the priority to provide additional guarantee.