| The deadline for the exercise of the mortgage,mainly the statutory exercise of the deadline and the agreed exercise period.This article that the "Property Law" Article 202 of the provisions of the statutory exercise of the deadline.Because the provisions of the provisions of the "court does not protect" ambiguous,in our judiciary and doctrine on the period after the mortgage "survival" and "eliminate the" two views.Among them,the "elimination" and the limitation of action and exclusion through the two kinds of elimination of the reasons for the difference.We have to see the whereabouts of this.For example,the former view directly challenged the legal principle of property(the law provides that the function of the mortgage is to protect the implementation of the creditor’s rights,but the view of the mortgage itself has the priority of the priority of compensation),and "eliminate" "Presence" seems to protect the interests of creditors,but can not stand the scrutiny: "the court does not protect" does not make the interests of creditors to be protected.The view that the exclusion period is the cause of the mortgage is mistakenly believed that the mortgage is the object of the exclusion period and that the statutory term is extended by the extension of the limitation of action,but it is generally considered that the repulsive period is a fixed period.There are two points of view that the limitation of action is the cause of its elimination.One is whether the mortgage can apply the limitation of action in the theoretical circles,and the second is the same as the limitation of the lawsuit.But destroyed,resulting in the same with the main creditor’s effect,contrary to the characteristics of security rights from the property.At the same time,China’s security interests,including mortgage,pledge and lien,because of their own inaugurated in different ways,but should be discussed separately,this article mainly to explore the effectiveness of the main mortgage.The question of whether the term of the exercise of the agreed mortgage is valid is always controversial.The view of this article is from the contract law in the meaning of autonomy and property law in the property law two aspects of consideration,that should be effective.Chapter 1: analyzes some problems on the exercise period of the mortgage in our country: the "persistence" of the mortgage after the expiry of the main creditor’s rights expires directly provokes the legal principle of the real right,so that the right of the mortgage itself should be lost To do so.On the other hand,although there is no court coercive protection,but the mortgage is still registered,the transfer of collateral,other rights of the exercise of the rights are seriously affected.The exclusion period applies to the formation of the right,the mortgage is not its object.There are two points of view that the limitation of action is the cause of its elimination.One is whether the mortgage can apply the limitation of action in the theoretical circles,and the other is the same effect,and the mortgage has different effect from the main claim,Challenging the legal effect of the right of action through the right of defense.Chapter2: from the positive and negative aspects of the mortgage after the expiry of the statutory expiry of the mortgage after the expulsion of the reasons for the concept of natural property is made by the law;the mortgage does not destroy will affect other creditors.Chapter 3: recognizes the validity of the term of the agreed mortgage,that the mortgage is one of the real right,but also closely related to the mortgage contract,should consider the factors of autonomy.Chapter 4: points out that the exercise term of the mortgage is actually the expiry of the right,and introduces the system of the failure of the right as the reason why the mortgage is destroyed.The system originated in Germany,civil law system in the civil law countries are reflected.This chapter mainly introduces the applicable elements of the system,the legal effect produced,and by referring to a judicial interpretation and a court referee,that this system can be established in China,applicable. |
