Study On The Legal Problems Of Hypothec Fulfillment

Hypothec is an important part of the real right for security, the premise and key of the realization of mortgage is functionalize of hypothec, and is also the basis of effective protect the mortgagee interests. Therefore, whether the mortgage can be convenient, efficient is the bottleneck of the mortgage guarantee system, and also to reflect the reality of the mortgage value. Before our country modifies the "Civil Procedure Law" in august2012, we have already constituted the relevant legal system to provide a more complete basis and norms for the mortgage right. However, because there are provisions are too simple in the system, and lack of maneuverability and the specific procedures in addition to support the standard. There are still problems for example low efficiency of the mortgage right, high cost resulting rights collateral interests in practice cannot be effectively guaranteed phenomenon, directly reduce the effectiveness of mortgage guarantee system, which makes the design right mortgage form, thus affecting the realization of mortgage guarantee system value. An additional section in the "special program" of the revised "Civil Procedure Law" is for "realizing the real rights for security cases", so as to provide legal procedures to establish the concrete operation standard of "Property Law". However, in judicial practice, there are still many problems need to be further clear and norms.In this paper, we focused on the realization the legal issue of mortgage, based on the theory and practice of operational effectiveness and feasibility analysis and through the comparative law related to the system, to investigate the problems of basic theory, to achieve the mortgage rights in the realization process, the realization way and the exercise period. Analysis, summed up the realization of hypothec in China and problems of legislation system, and puts forward concrete suggestions to improve the relevant legislation in China, in order to improve the judicial practice in the understanding and application of the relevant legal system, so as to safeguard the legitimate rights and interests, realize the practical value of mortgage system.This paper is divided into four parts, expounding the following:The first part outlines the realization of mortgage right, mainly expounds the meaning of the mortgage right, the concept of realizing the mortgage right, significance and conditions. The realization of hypothec essentially consists of two stages, first stage is the collateral price and the second stage is the creditor’s priority, these two stages are mutually conditional and interrelated. Only when the realization of mortgage rights meets the requirements of efficiency and fairness, then the financing and guarantee function of mortgage can be maximized, and at the same time to balance the mortgagee, mortgagor and ordinary creditor’s legitimate interests. The realization of mortgage must satisfies two conditions simultaneously, one is effective in mortgage; the other one is the obligor fails to pay off its due debts or stipulated by the parties concerned for realizing the mortgage right.The second part is the procedure of mortgage realization. There are two aspects, first is the extra-national legislations of the procedure of mortgage realization, including mortgage contract implementation program and the legal procedures of the mortgage right, the second is procedures for the realization of the laws and regulations of our country’s mortgage.In the first part, we analyze the advantages and disadvantages of the contract implementation programs including forbidden patterns and allows patterns and the legal procedures of the mortgage right including the litigation and non-litigation mode. Based on the analysis of two kinds of realization of the program, and then summed up the law of our country of realization of hypothec agreed procedures, legal procedures and several specific issues. Finally, expounds the specific problems on the realization of the right mortgage legal procedure of the revised Civil Procedure Law of China. The third part is the methods of mortgage realization. There are differences between mortgage agreed implementation procedures and legal implementation procedures. This paper uses comparative method in the agreed program of the mortgage to introduce the two major law systems of some advanced legislation, and then introduces the contract implementation methods of the law of our country mortgage, mainly focused on the agreement discount, agreement auction and agreement sell off; and then analysis the legal procedures of the mortgage right in our country in order to makes some suggestions to improve the mortgage right legal procedure on this basis.The fourth part is the period of exercise the right of mortgage, including the nature of the exercise period of mortgage, effects on realization of hypothec and the analysis and improvement of the legal provisions of our country. The term exercise the mortgage right is crucial to the realization of mortgage. For this problem, there are three major foreign legislation modes, namely, the limitation of action mode, scheduled period mode and the public summons invalidating mode. And the provisions of China’s "guarantee law" and "property law" are not consistent, Article202nd of "Property Law" is vague, the author suggests that the Supreme People’s court to supplement and improve the relevant judicial explanation based on the advanced legislation as soon as possible.