中国共同抵押权实现规则研究 －以调整当事人的利益为中心－

Abstract

The primary purpose of joint mortgage rights is to enhance the security and feasibility of the realization of creditor's rights through the collective guarantee of multiple mortgaged properties. In the field of civil law, the realization of joint mortgage rights must be based on respecting the autonomy of the parties involved, reasonably coordinating the interests of multiple parties, and ensuring the fair and effective realization of creditor's rights. Therefore, the free choice rights of the joint mortgagee should be reasonably restricted when realizing joint mortgage rights. When realizing joint mortgage rights, the creditor's right of choice should be reasonably limited to protect the legitimate interests of the debtor, the property guarantor, and the subsequent mortgagee. This restriction is reflected in two aspects: first, when the debtor provides the mortgaged property, the creditor's right of choice should be reasonably limited by the interests of the debtor; second, when the mortgaged property is provided by a third-party property guarantor, the creditor's right of choice should also take into account the legitimate interests of the property guarantor. In the process of realizing joint mortgage rights, it is necessary to determine the distribution share of the mortgaged property. The distribution share of the mortgaged property should match the actual value of the property, taking into account the nature of the creditor's rights and the agreement between the parties to ensure the fairness of the distribution. In the case of simultaneous and sequential distribution, the systems of subrogation for payment and subsequent mortgagee subrogation can be applied to adjust the interests. While respecting the creditor's free choice rights, the interests of the debtor, the property guarantor, and the subsequent mortgagee must also be considered. Through this balance, the joint mortgage system can play its due role, ensuring both the realization of the creditor's rights and the protection of the legitimate interests of all parties involved.