Protection Of The Duration Of The Mortgage Right Not Exercised After The Expiration Of The Limitation Of Action Of The Master Creditor’s Right

In the Civil Code of the People’s Republic of China(hereinafter referred to as the Civil Code)which came into force in 2021,Article 419 of the Real Rights Division retains the provision of Article 202 of the Property Law of the People’s Republic of China(hereinafter referred to as the Property Law),that is,"the mortgagee shall exercise the mortgage right during the limitation of action of the principal creditor’s right;If it fails to do so,the people’s court shall not protect it." However,this regulation still does not solve the legal problem of "whether the unexercised mortgage is established and continued after the expiration of the limitation of action of the master creditor’s right",which leads to the frequent occurrence of the judicial dilemma of different judgments in the same case.Clarifying this problem is an important link in the mortgage system,which is related to the perfection of the guarantee system,its application in practice and the operation of the market transaction order.At the same time,filling legal loopholes,improving the legal system and comprehensively advancing the rule of law are important cornerstones for realizing the Chinese dream of great national renewal and realizing lasting peace and stability of the Party and the country.By comparing similar cases in judicial adjudication and sorting out different viewpoints in academic circles,this paper finds that when the limitation period of the master creditor’s right expires,there is a dilemma in judicial practice whether the unexercised mortgage right should exist in the same case with different judgments during the period,and the legal theory also continues to be controversial.Network at the same time,the author in the written judgment,a magic weapon of Peking University network has carried on the big data collecting and organizing,analysis by using data analysis method,through the form of chart shows the status quo of application of article 202 of the property law in reflecting the present court in actual judicial referee to different understandings of "property law" the 202 th,makes some referee mortgage against,also some referee hypothec don’t eliminate,referees have different reasons,but each have legal support,there are their respective shortcomings.In addition,this paper also sorts out the different viewpoints of the theoretical circle,and demonstrates the legitimacy and necessity of establishing the existence period of the Mortgage rights that have not been exercised after the expiration of the statute of limitations period of the principal creditor’s right.On this basis,the author compares the legislative examples of France,Germany and Japan as well as the legislative evolution of China.Finally,the author designs the legislative idea of the existence period of the unexercised mortgage right after the expiration of the limitation period of the principal creditor’s right,and improves the starting point of the elimination of the existence period of the mortgage right and the supporting system that the third party creditor can exercise the subrogation to request the elimination of the mortgage right.The innovation of this paper lies in that,in the construction idea of establishing the existence period of unexercised mortgage right after the expiration of the limitation period of the principal creditor’s right,the current laws and regulations are not modified.On the premise of retaining article 419 of the Civil Code,the second and third clauses are added.The specific content is as follows: "If the mortgagee fails to exercise the mortgage right during the limitation of action of the principal creditor’s right,the mortgagor may request the people’s court to confirm the termination of the mortgage right;Where the people’s court confirms the termination of the mortgage,the mortgage shall expire on the date the mortgagor brings a suit against it.If the creditor complies with Article 535 of the Civil Code,he may apply to the people’s court for confirmation of the termination of the mortgage right by subrogation.If the people’s court confirms that the mortgage right is extinguished,the mortgage right shall be extinguished on the date of the subrogation suit." This legislative design has absorbed the various viewpoints of the law circle so far,but it is not the same as it,and has made unique provisions.Under the premise of complying with the theoretical system of civil law and social and economic conditions of our country,it not only abides by the principle of legal property right when the mortgage right as real right is eliminated,but also guarantees the interests of all parties in the mortgage relationship,and gives full play to the circulation value and economic benefits of the mortgaged property.