实现担保物权程序之立法论研究

The Legislative Theoretical Research of the Procedure of Realizing Security Interest

诉讼裁判模式、非讼裁判模式、直接申请强制执行模式,各有优势和弊端。我国《民事诉讼法》及其司法解释将实现担保物权程序纳入到特殊程序之中,就此学界基本持赞同态度。但实现担保物权程序立法模式之选择除立足国情,考量效率和公正两种不同的价值外,尚需考虑担保物权登记凭证基于国家公权力所具有的特殊效力,即具有转化为执行力的内在禀赋。此外,社会存在决定法律制度,我们尚需反向考察实现担保物权程序的实际运作效果,并基于实践中存在的问题,实现担保物权程序在民事诉讼法中恰当定位。

The litigation referee model, the non-lawsuit referee model and the directly applying for compulsory execution model all have advantages and disadvantages. The Civil Procedure Law and its judicial interpretation both put the procedure of realizing security interest into the special program, which have gained learned man＇s favor. But the choice of the model of the procedure of realizing security interest needs to consider the state of the union and the value of efficiency and justice. In addition, the choice still needs to consider the special effect of the real rights for security registration certificate based on the national public power. In other words, real rights for security credentials have ability to execution, After all, the social existence determines the legal system. We must judge the practical operation effect of the procedure of realizing security, and based on the problems in the practice, to benchmark the position of the procedure of realizing security interest in the civil procedure law.