Legal Analysis Of Liu Mouzhu V.a Bank For Real Estate Mortgage Contract Disputes

Our country did not clearly distinguish mortgage rights and pledge rights in the form of legal systems until the promulgation of the Guarantee Law.However,the issue of the exercise period of mortgage rights was not covered at the beginning of the formulation of the Guarantee Law.And then Interpretation of the Guarantee Law limits its time limit to within 2 years after the end of the statute of limitations for secured claims.And the subsequent Property Law stipulates the issue of the time limit for the exercise of mortgage rights,but the legislative thinking of the original Guaranty Law Interpretation is not adopted.If the mortgage rights is exercised after the time limit,Article 202 of the Property Law stipulates “ It is not protected ”.No significant adjustment was made to the content of the Property Law during the revision process of the Civil Code,and the content of the original Article 202 of the Property Law was adopted by Article 419 of the Civil Code.Mortgage system is widely used in the real economy because of its flexibility and universality of applicable objects.It is even called the “ King of Guarantee ” in academic circles.However,when there is a dispute over the legal relationship of mortgage,it is understanding on “It is not protected ”,which cause the differences in the practice often lead to the phenomenon of different judgments in the same case.Based on the research of “ Liu Mouzhu v.a Bank Real Estate Mortgage Contract Dispute ”,from the perspective of the exercise period of real estate mortgage rights,this article attempts to summarize the issue of “ mortgage rights exercise period ” from the following three aspects: First,Clarify that after the expiration of the statute of limitations of the main creditor’s rights,the real estate mortgage should be extinguished,so as to eliminate the ambiguity of “It is not protected ” in the dispute clause of Article 202 of the Property Law.Second,it is suggested that the nature of the duration of the mortgage of real estate should be defined as the period of exclusion,providing theoretical support for the “ elimination theory ” adopted by the above-mentioned problems from the perspective of legal theory.Thirdly,after that the judgment of the master creditor’s right becomes effective,the limitation of action of the real estate mortgage is determined to be unexpired,which is more in line with the intention of the legislators and more helpful to solve the problems encountered in the current judicial practice.Finally,come to the conclusion that the “ real estate mortgage period for exercising ” problem,due to the causes of legislation resulting in different local judgment standard,it is recommended,in understanding the meaning of Article 419 of the Civil Code,that the legislative branch should issue judicial interpretation as soon as possible or transform the content the above-mentioned in the Civil and Commercial Trial Summary,It is a better way,by defining the nature of the mortgage term,or establishing the mortgage announcement elimination system,to solve the problems in the academic and practical circles.