The Study On Duration Of Mortgage

Article 202 of the Property Law of China stipulates the duration of mortgage,which changes Article 12 of the Interpretation of the Supreme People's Court on the Application of the Guarantee Law of the People's Republic of China(hereinafter referred to as the Judicial Interpretation of the Guarantee Law).It stipulates that mortgage is protected by law only during the limitation period of the main claim.However,this provision is not clear,for example,the expression that the people's court does not grant protection has caused a lot of controversy in the theoretical and judicial practice circles,which has led to the occurrence of different judgments in the same case in practice.Therefore,the study of the duration of mortgage is of great significance to improve the system of the duration of mortgage.This paper is divided into four parts.The first chapter of this paper introduces two representative cases about the duration of mortgage.It mainly introduces the summary of the facts of the case and the reasons and results of the judgments of the courts at all levels in the case.The issues involved in the case are representative issues in judicial practice concerning disputes over the duration of mortgage.Through the study and analysis of these problems,I hope this article will provide some suggestions for the future trial of mortgage issues during the life of the mortgage.Chapter two analyses the main problems involved in the case.This chapter mainly discusses three unavoidable problems in the trial of such cases: 1.the determination of the nature of the mortgage during its existence;2.the legal consequences of the limitation of action for the main creditor's rights.As for the first problem,there are three different kinds of identification in judicial practice: one is to identify it as the limitation of action,the other is to identify it as the period of exclusion,and the third is the theory of subordination.As for the second issue,there are judgments that confirm the extinction of the mortgage,and judgments that the mortgage continues to exist but loses the right to win the lawsuit.The third issue is about the validity of the agreed mortgage period.There are two main theories: the compulsory norm theory and the arbitrary norm theory.Chapter three is to compare the legislation of different countries(regions)on the duration of mortgage.Chapter IV is through the analysis and comparison of legislative cases of various countries(regions).It is found that it is difficult for China's real right law to learn from the existing system experience of French,Japanese and German civil laws,but we can learn from similar legislation cases in Taiwan to improve the system of the duration of mortgage in China.Referring to Taiwan's legislation,we should regard the duration of mortgage as the period of exclusion,which is more in line with the actual situation of the mainland in terms of theory and practice.Finally,it is the enlightenment to the trial practice.