On The Period Of Exercise Of A Security Interest

Article 419 of the Civil Code stipulates the period during which the mortgage right is exercised,and the Judicial Interpretation of the Guarantee System stipulates that pledges by registration as a means of publicity may be applied by reference.However,Article 419 of the Civil Code completely continues the relevant norms of Article 202 of the Property Law,and it is difficult to clarify whether there is an independent exercise period in the first half of the article,and the legal effect of "not protecting" in the second half is not clearly defined,so that the controversy in the era of the Property Law also continues into the era of the Civil Code.Article 419 of the Civil Code amplifies the controversy over the institutional value and institutional structure behind the exercise of security rights,and the judicial interpretation of Article 419 of the Civil Code amplifies the controversy,so that many interpretations are parallel,making judicial practice confusing and serious different judgments in the same case.At the same time,the Civil Code has made major changes to the security interest system compared with the Property Law,so the connection between the exercise of security rights should also be done.During the exercise of the security interest,legislation should return to daily life,return to the "security" value of the security interest,adhere to the principle of "priority in the preservation of the interests of the creditor,taking into account the utilization and circulation value of the subject matter of the security",the security right should not exist forever,and necessary restrictions must be made during the exercise of the security right so as to facilitate its full use.First of all,in terms of specific institutional structure,based on the entry of atypical guarantees such as title retention,financial lease,and assignment guarantee,the subordinate nature of security has been broken,and based on the necessity of uniform application,the first half of Article 419 of the Civil Code should not be defined as the embodiment of the subordinate nature of the guarantee,and it is more reasonable to define it as the period of exercise of the security interest.Secondly,the legislative purpose between the first half of Article 419 of the Civil Code is to be linked to the statute of limitations for the main claim,and there is no independent period of exclusion or loss of rights,which should not be subject to the existing interpretation restrictions,and the nature of the period for the exercise of the security right should be defined as the limitation of actions.Then,the legal effect of the expiration of the exercise period of the security right,in other words,the meaning of "not protecting" in the second half of Article 419 of the Civil Code is "the right of defense arises",the judge shall not take the initiative to examine whether the exercise period of the security right has expired ex officio,the guarantor has the right to choose whether to carry out the limitation defense,if the limitation defense is waived,the security owner still enjoys the security interest,and can be reimbursed in priority for the price of the subject matter,such as claiming the limitation defense,the security owner loses the right to prevail.The guarantor may request the security owner to assist in the registration of corrections,thereby cancelling the mortgage registration,and based on the relativity of the contract and the security of the transaction,the assignee of the subject matter of the security may not request the security owner to assist in the registration of corrections after the expiration of the limitation period for the main claim.Finally,for the scope of application during the exercise of security interests,based on the principle of fairness and the need to maintain the security interest system,it should be applied by analogy with "delivery-type" security interests,and at the same time,based on the introduction of security functionalism,atypical guarantees should also be applied by reference.