Legal Analysis On The Mortgage Contract Case Between Jiangxi Le’an Rural Commercial Bank Co.ltd.and Chen Jinxiu

Article 419 of the "Civil Code of the People’s Republic of China" stipulates that the mortgagee shall exercise the mortgage right during the statute of limitations of the main creditor’s right;if it is not exercised,the people’s court shall not protect it.Article 419 of the newly promulgated "Civil Code of the People’s Republic of China" inherits the provisions on the duration of mortgage rights in Article 202 of the "Property Law".The continuation of this legal loophole in the articles of the "Civil Code of the People’s Republic of China" is in all respects.Is undesirable."The Supreme People’s Court’s Interpretation on the Application of the Relevant Guarantee System of the Civil Code of the People’s Republic of China" continues the "Judicial Interpretation of the Security Law" if the mortgagee claims to exercise the mortgage right after the statute of limitations of the main creditor’s right,the people’s court shall not support it.Regulations.It is still unclear whether the security real right will be eliminated after this specific period of time.Even though the two laws have tried to fill this loophole in the Judicial Interpretation of the Security Law and the Property Law,there is still no unified view in judicial practice and academic circles.The real right for security is a fixed real right and a real right with a time limit.The practical significance of guaranteeing logistics requires that the real right of the guarantee should have a definite duration.In terms of normative structure,there is a special relationship between the duration of the security real right and the statute of limitations of the secured creditor’s rights.Through the method of case analysis,the first part introduces the basic situation of the case,gives the court’s judgment opinions and results,and summarizes the focus of the dispute in this case.The second part analyzes the focus of the dispute,and comprehensively analyzes the facts of the case,focusing on whether and when the time elapsed for the statute of limitations of the main creditor’s lawsuit.The third part is to analyze the question of how to determine "non-protection" in this case.This article needs to analyze the four theories and summarize the four theories into two categories to demonstrate.Regarding the nature of the determined duration of mortgage rights,it is necessary to clarify the misunderstanding that it is not a period of exclusion that can only be applied to the right of formation,and the limited thinking that the right of formation is a fixed period,which explains the period of exclusion and the statute of limitations.The essential difference and specific connection between the two,finally came to the conclusion that the author’s point of view is that after the main creditor’s right has passed the statute of limitations,that is,after the main creditor’s right has passed the period of exclusion,the mortgage should be eliminated.The period system,as a tool for adjusting legal relations,makes the period system more flexible.The future revision and improvement of the "Civil Code of the People’s Republic of China" can focus on adjusting and improving the specific provisions on the duration of mortgage rights.