[Original] How to understand the period of mortgage exercise stipulated in Article 202 of the Property Law

The Supreme People's Court's latest authoritative explanation and retrial cases in the process of mortgage exercise

I. Legal Provisions and Judicial Interpretation Provisions

* Article 202 of the Property Law stipulates: "The mortgagee shall exercise the mortgage right during the limitation period of the principal creditor's rights; If it is not exercised, the people's court will not protect it. "

* Article 419th of the Civil Law stipulates: "The mortgagee shall exercise the mortgage right during the limitation period of the principal creditor's rights; If it is not exercised, the people's court will not protect it. "

* "the Supreme People's Court on the application of

Second, the second court of civil trial in the Supreme People's Court, the understanding and application of the judicial interpretation of the guarantee system in the Supreme People's Court Civil Code (People's Court Press, 202 1 May, pp. 1 395-40 1 Page), explained the above provisions as follows:

gist of the article

This paper is about the influence of the expiration of the limitation period of principal creditor's rights on security interests.

Overview of terms

Since the security interest is subordinate to the principal creditor's right, the mortgage is not protected by the people's court after the principal creditor's right becomes a natural debt due to the expiration of the statute of limitations, but this does not mean that the statute of limitations applies to the mortgage itself. As for whether the mortgagor can request the mortgagee to assist in the cancellation of mortgage registration when the principal creditor's rights have passed the limitation of action and the mortgage is no longer protected by the people's court, the relevant provisions of the minutes of civil and commercial trial meetings can continue to apply. Because the current law of our country has reformed the limitation period of application execution, the mortgagee only sued the debtor and won the case during the limitation period of the main action, but did not apply for enforcement during the statutory limitation period of application execution, and claimed to exercise the mortgage right from the mortgagor, and the people's court did not protect it.

Controversial views

According to Article 4 19 of the Civil Code, it is common sense that the people's court will not support the mortgagee's claim to exercise the mortgage. However, if the mortgagee only files a lawsuit with the debtor as the defendant within the limitation period of the principal creditor's rights, and obtains an appeal judgment, but fails to apply to the debtor for enforcement within the statutory limitation period of application for enforcement, and then claims the mortgage right from the mortgagor, should the people's court support it? In this regard, there are different views: one view is that the mortgagee has claimed rights from the debtor during the limitation of action for the principal creditor's rights, and naturally there is no longer the problem that the principal creditor's rights are not protected by the people's court because of the limitation of action, and the mortgagee can claim to exercise the mortgage right from the mortgagor at any time; The second view is that although the mortgagee sued the debtor and won the lawsuit within the limitation period of the principal creditor's rights, it should be considered that the principal creditor's rights have become natural debts and the secured debts have also become natural debts, and the mortgagee can no longer protect his mortgage rights through the people's court.

Understanding and application

First, whether the security interest has an independent protection period.

As for whether the security interest has an independent protection period, the security law does not clearly stipulate, but Article 12 of the Interpretation of the Security Law stipulates: "..... after the limitation of action for the creditor's rights secured by the security interest ends, if the guarantor exercises the security interest within two years after the limitation of action ends, the people's court shall support it." It can be seen that the holder of the security interest can still exercise the security interest within two years after the expiration of the limitation period of the principal creditor's rights. This also means that security interests still have an independent protection period.

The Property Law did not adopt this idea. Article 202 stipulates: "The mortgagee shall exercise the mortgage right during the period when the principal creditor's rights are restricted; If it is not exercised, the people's court will not protect it. " Because this article adopts the expression of judicial interpretation, that is, "under what circumstances, the people's court will not protect it", there are different opinions on the normative purpose of this article in practice: one opinion is that the establishment of mortgage should also apply the statute of limitations, and the statute of limitations of mortgage should be calculated according to the statute of limitations of principal creditor's rights; Another point of view is that this article is not to establish that the limitation of action should also be applied to the mortgage, but to emphasize the subordinate nature of the mortgage, that is, when the principal creditor's rights cannot be protected by the people's court because of the expiration of the limitation of action, the mortgage will no longer be protected by the people's court. Obviously, the latter opinion is correct, because the real right for security belongs to a kind of real right, and the real right itself is not protected by the people's court in principle, because the statute of limitations has expired. However, if the secured creditor's right becomes a natural debt due to the expiration of the limitation of action, the security interest will naturally no longer be protected by the people's court. Article 4 19 of the Civil Code inherits the provisions of Article 202 of the Property Law, and naturally it should be understood in this way.

The question is, if the mortgagee only files a lawsuit with the debtor as the defendant within the limitation period of the principal creditor's rights, and has obtained an appeal judgment, but fails to apply to the debtor for enforcement within the statutory limitation period, and then claims the mortgage right from the mortgagor, should the people's court support it? In this regard, our opinion is that although the mortgagee brought a lawsuit against the debtor before the expiration of the limitation period of the main debt, the Supreme People's Court's judicial interpretation on civil execution reformed the limitation period of the application for execution stipulated in the Civil Procedure Law. Therefore, after the judgment is successful, the mortgagee shall also apply to the people's court for compulsory execution of the debtor within the time limit prescribed by the Civil Procedure Law. If the mortgagee fails to apply for compulsory execution of the debtor within the time limit prescribed by the Civil Procedure Law, even if the creditor's right has been confirmed by the people's court, it is no longer protected by the people's court because the time limit for application for execution has expired. Since the principal creditor's rights are no longer protected by the people's court, the security interests subordinate to the principal creditor's rights are naturally no longer protected by the people's court.

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practical problem

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The creditor only sued the debtor, not the mortgagor. After the judgment, the creditor failed to apply for enforcement. Now the creditors sue the mortgagor separately, demanding priority to be paid for the collateral. Should the people's court support it? This is a common problem in practice. Article 4 19 of the Civil Code stipulates: "The mortgagee shall exercise the mortgage right during the period when the principal creditor's rights are restricted; If it is not exercised, the people's court will not protect it. " On this basis, we believe that even if the creditor only sues the debtor and does not sue the mortgagor, the creditor will sue the mortgagor after the judgment, and the creditor's request should be supported as long as the limitation of action for the principal creditor's rights has not expired. In the trial practice, the only criterion to support the mortgagor is whether the limitation period of the principal creditor's rights has passed. As long as the limitation period of the principal creditor's rights has not expired, the creditor's request should be supported. Of course, the people's court should not support the creditor's claim to exercise the mortgage right when the limitation of action for the principal creditor's right expires.

After the execution of the judgment fails, the limitation period of action shall be recalculated.

Three. The latest case of the Supreme Court-(2020) People's Republic of China (PRC) Supreme Law No. 1 10, Zhao Jisheng v Benxi Shihua New World Property Management Co., Ltd. (judgment date: September 30, 2020).

primary facts

On September 2, 2065438, the creditor Zhao Jisheng signed the Mortgage Loan Contract with the borrower Shihua Real Estate Company, and the agreed loan term was 201September 5 1 1 day. On the same day, Benxi Shihua New World Property Management Co., Ltd. (hereinafter referred to as Shihua Property Company) signed the Benxi Real Estate Mortgage Contract with Zhao Jisheng as the mortgagor, and Shihua Property Company provided mortgage guarantee for the aforementioned loan contract with all its houses and registered the mortgage right. 201610/8. Zhao Jisheng sued the borrower Shihua Real Estate Company to repay the principal creditor's rights to the court of first instance, but did not file a lawsuit against the mortgagor for exercising the mortgage right. 2065438+On June 7th, 2007, the court made a civil judgment (2065438+2065438) on the principal creditor's rights, and ordered Shihua Real Estate Company to repay the arrears and interest to Zhao Jisheng. None of the parties appealed. On June 6, 20 17, Zhao Jisheng applied to the Pingshan District People's Court of Benxi City to realize the security interest. On June 6th, 20 1 165438, the court filed a case, and on July 9th, 20 18, it was (20 17) No.55, Liaoning 0502 Minte, and on July 24th, 2008, Zhao Jisheng filed a mortgage against Shihua Property Company.

Reasons and results of the referee

The court of first instance held that the loan contract and mortgage contract involved were legal and valid, and the mortgage right was effectively established. According to Article 12 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the Security Law of People's Republic of China (PRC) (hereinafter referred to as the Interpretation of the Security Law), if the creditor's rights secured by security interests exercise the security interests within two years after the expiration of the limitation period, the people's court shall support it. As the court of first instance finally confirmed the payable amount of Shihua Real Estate Company in the civil judgment of (20 17 17) Liao05 Minchu No.30 on17, Zhao Jisheng exercised the security interest in the next two years, which was in compliance with the law and should be supported. 2065438+On July 24th, 2008, Zhao Jisheng filed a lawsuit to realize the security interest, which did not exceed the time limit for exercising the security interest. The court of first instance ruled that Zhao Jisheng had the right to mortgage the mortgaged house of Shihua Property Company, and had the right to be compensated in priority for the discount of the mortgaged house or the proceeds from auction and sale.

The court of second instance held that Article 202 of the Property Law stipulates: "The mortgagee shall exercise the mortgage right during the limitation period of the principal creditor's rights; If it is not exercised, the people's court will not protect it. " In this case, Zhao Jisheng first sued the court of first instance for the principal creditor's rights, and the court made a judgment of 20 17 1 17 after the substantive trial. The limitation of action of the principal creditor's rights involved is terminated due to the making and effectiveness of the substantive judgment. As a mortgage contract, the guarantee period is 201September 4 12 to 201September 5 12. According to the General Principles of the Civil Law, the limitation of action in this case is two years from September 20 15 13, and Zhao Jisheng is better than 2065438. Judgment of the court of second instance: The judgment of first instance was revoked and Zhao Jisheng's claim was rejected.

The Supreme People's Court's retrial held that the interpretation of the mortgage period in the Property Law and the Guarantee Law was inconsistent. According to Article 178 of the Property Law and the principle that the superior law is superior to the subordinate law and the new law is superior to the old law, the provisions of Article 202 of the Property Law apply to this case.

Mortgage is a security interest. When the debtor fails to perform the due debt or the parties agree to realize the security interest, the holder of the security interest may exercise the security interest according to law. In the case that the people's court ruled that the holder of the security interest initially applied for the special procedure to realize the security interest, although the current laws and judicial interpretations did not clearly stipulate the time limit for the holder of the security interest to bring an ordinary lawsuit, because the above-mentioned special procedure and ordinary procedure have the continuity of legal procedures, as long as the holder of the security interest did not delay bringing a lawsuit to the people's court obviously and unreasonably, the time when the holder applied for the special procedure to realize the security interest for the first time should be regarded as the time to exercise the security interest, instead of simply regarding the time when the holder of the security interest subsequently filed a lawsuit as the time to exercise the security interest. In this case, Zhao Jisheng, the mortgagee, both initiated the special procedure of realizing the mortgage right and subsequently initiated the ordinary procedure of mortgage litigation, all of which belong to the act of exercising the mortgage right stipulated in Article 202 of the Property Law. As mentioned above, the time for Zhao Jisheng to exercise the mortgage right should be June 6, 20 17 when he applied to the court of first instance for special procedures to realize the mortgage right. According to the loan term agreed in the loan contract involved, the initial starting point of the limitation period for the principal creditor's rights involved should be 2065438+September 2005 12; On June, 2065438, Zhao Jisheng filed a lawsuit for repayment of debts with Shihua Real Estate Company, and the statute of limitations for the principal creditor's rights was interrupted. Therefore, the time for Zhao Jisheng to exercise the mortgage right in this case, whether it is based on the initial starting time of the limitation period of the principal creditor's rights or the starting time after the interruption of the limitation period of the principal creditor's rights, did not exceed the period stipulated in Article 202 of the Property Law.

Mortgage is a kind of real right for security, and the statute of limitations system is not applicable, otherwise it will violate the traditional civil law theory. The mortgage is only about the exercise period, which is the same as the limitation period of the principal creditor's rights stipulated in Article 202 of the Property Law, and changes with the interruption and suspension of the limitation period of the principal creditor's rights. That is to say, the exercise period of mortgage right is only calculated with reference to the limitation period of principal creditor's rights, which does not mean that the limitation system should also be applied to mortgage right. The mortgage advocated by Zhao Jisheng in this case should be supported, because his exercise of mortgage did not exceed the statutory exercise period stipulated in Article 202 of the Property Law, rather than the result of directly applying the statute of limitations system to his mortgage.

The Supreme People's Court's final judgment: Although the first-instance judgment was wrong in applying the law, the judgment result was correct. Cancel the judgment of the second instance and maintain the judgment of the first instance.

References:

1, the second court of civil trial in the Supreme People's Court compiled Understanding and Application of Judicial Interpretation of Guarantee System in the Supreme People's Court Civil Code (People's Court Press, 202 1, May, 1, p. 395-40 1).

2. A typical case of the Supreme Court's second tour: the judgment during the exercise of the mortgage right was published in the official account of WeChat "Civil Trial Reference" at 202 1 1 5.