Research On The Problem Of Realization Of Hypothec In China

Hypothec is one of the most important security ways in our guarantee system, in order to realize the debts right that the hypothec is set up, it is a priority claim right when the debtor doesn't fulfill the debts.However hypothec achievement is the crucial part of hypothec system as well as the important effect of hypothec guarantee, also it is the most important right of the hypothec holder, is the final value show of hypothec guarantee system. Although our "General Rules of Civil Law" "Security Law" and "Property Law" have already set perfect regulations on the hypothec guarantee system, there are still many problems have to be solved when they are carried out into practice. And this situation is going to hart the rights holder, so I chose the hypothec achievement as my research objective. According to the basic legal provision on hypothec achievement in our country, and combining the foreign legislative cases to analysis the existing problems of hypothec achievement, Focus on the ways,including the controversy and difficulty on this issue, in order to give a recommendation on how to make the hypothec legal system perfect.This thesis contains four chapters.Chapter one I will analysis the legal situation of the hypothec fulfillment first. This part is one of the important parts of this thesis. Basis on our country's legal regulation about hypothec fulfillment, analysis the existing problem of hypothec fulfillment system, focus on the elements, and ways and means of hypothec fulfillment thought deeply research, in order to find the problem on high-cost and inefficiency of hypothec fulfillment. For example, although China like most other countries use public relief and self-relief two ways, as well as legislation regulate that party can though the agreement or sue to the court to realize the hypothec. But in practice, though the ways of parties agreement, discount, sale, etc are often inefficiency, just because the mortgagors usually don't cooperate. Most have to be solved through litigation, and make the cost higher,so the parties could not escape the cumulative long-term action, resulting the lower efficiency of hypothec achievement.The second part is to compare the extraterritorial law regulation, study the foreign advanced cases from the ways to the means, then to the specific system of hypothec fulfillment.For example, enforcement management system of civil law mandatory auction system, trust security system of United States, etc, the purpose is to provide valuable reference for our country's hypothec fulfillment system perfection through the foreign countries hypothec achievement system.The third part talks about the perfection of our hypothec fulfillment System.For the above mentioned, our hypothec fulfillment system still existing the high cost and low efficiency problem, so we should learn from foreign advanced legislation to establish the non-defendants procedures, even though our "Property Law" 195 provisions regulate that the litigants may apply to court auction the mortgage property when they can't get agreement.But because of the "Code of civil procedure" without the matching regulation, so make the legal regulation difficult to implement in practice. So I propose to formulate and revise relevant laws of hypothec fulfillment. In addition, should learn from common law trust security system and civil law enforcement management system, while lifting of the ban of convective contract, and perfect the system of compulsory auction, then farther perfect China's hypothec fulfillment system though reducing the cost and improve the efficiency of the mortgage achievement, better protect the interests of the relevant rights holders.The forth part is about studying on difficult problems of hypothec fulfillment. This part is the import part of this thesis. Since our current legal system still exist some problems and errors that caused much difficulty and controversy. For example, registered or not on the mortgage property can have an impact on hypothec fulfillment or not, resulting in what kind of impact? What's the nature of hypothec period, the prescription of action, scheduled period or the other? What effect on how to achieve the hypothec? How to deal with the hypothec complete with other rights? How to achieve the hypothec? These situations are the intractable problems that we encountered frequently during the process of hypothec fulfillment. How to deal with these problems directly related to the vital interests of the parties, also related to the smooth achievement of the hypothec, then find out the ways that how to solve the problems from the characteristics of each issue of its own and its legislative purpose and policy orientation behind the system.