Legal Review

A Brief Discussion of the Special Procedure for Enforcing Security Interests

When the debtor fails to repay the debt on time, in order to realize the secured property (i.e., auctioning or selling the secured property) to realize the creditor's rights, the common practice is for the creditor to file a lawsuit with the people's court to determine the main claim and then apply to the court for enforcement. However, realizing security interests through litigation is a complex and lengthy process. In response, the Civil Procedure Law stipulates a special procedure for realizing security interests, which is a non-litigation model for realizing security interests, which, compared to litigation models...

The English text below is a convenience translation. The complete original Chinese text follows it.

When the debtor fails to repay the debt on time, in order to realize the secured property (i.e., auctioning or selling the secured property) to realize the creditor's rights, the common practice is for the creditor to file a lawsuit with the people's court to determine the main claim and then apply to the court for enforcement. However, realizing security interests through litigation is a complex and lengthy process. In this regard, the Civil Procedure Law stipulates a special procedure for realizing security interests. This is a non-litigation model for realizing security interests, which greatly facilitates the realization of creditors' security interests compared to litigation models. Specifically, the special procedure for realizing security interests has the following advantages:

1. Procedure simplification

The litigation model is the second instance final trial, and according to Article 178 of the Civil Procedure Law, the special procedure for realizing security interests is the first instance final trial. Therefore, a civil ruling for the special procedure to realize security interests takes effect from the date of issuance and can be immediately applied for compulsory enforcement.

2. Relatively short duration

To realize security interests through litigation, the period for ordinary first-instance proceedings is six months from the date of filing, and three months for second-instance cases, with special circumstances that may be extended. According to Article 180 of the Civil Procedure Law, except in special circumstances where the extension is approved by the court president, the special procedure for realizing security interest shall be concluded within thirty days from the date of filing.

3. Lower cost

To realize security interests through litigation, case acceptance fees must be paid according to the statutory proportion based on the amount of the claim. If applying to realize security interests through special procedures, creditors must prepay an application fee. Currently, the law does not clearly specify the prepayment standard for application fees. Different local courts have different fee standards. Some courts charge one-third of the litigation case acceptance fee (such as Shanghai Pudong Court), others charge half of the litigation acceptance fee (such as Shenzhen Futian District Court), and many courts charge a case acceptance fee of 50-100 yuan per case (such as Wuhan Maritime Court, Jiangsu Jingjiang Court, etc.). Therefore, the application fee required to be prepaid for the special procedure for realizing security interest is significantly lower compared to the case acceptance fee under the litigation model.

In addition, according to Article 204 of the "Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China," for special procedures for applying to realize security interests, if the court rules that for auctioning or selling secured property, the application fee shall be borne by the debtor or guarantor; If the court rules to dismiss the application, the application fee shall be borne by the applicant, but if the applicant files a separate lawsuit, the application fee already paid can be deducted from the case acceptance fee.

IV. Summary

Based on the above analysis, when encountering situations where security interests need to be realized, we recommend that creditors first apply to the court to realize security interests through special procedures. If the application is supported by the court, it greatly saves creditors time and costs; Even if the application is rejected by the court, according to Article 197 of the Civil Procedure Law, creditors may still file a separate lawsuit with the court to realize their security interest through litigation, and this will not increase the creditor's costs.

Original language

Complete original Chinese text

The complete Chinese original migrated from the previous website and checked for completeness follows.

在债务人未按期偿还债务的情况下,为实现担保物权(即拍卖、变卖担保财产)以实现债权,常见的做法是债权人向人民法院提起诉讼,确定主债权,然后向法院申请执行。然而,通过诉讼的方式实现担保物权,程序复杂且时间较长。对此,《民事诉讼法》规定了实现担保物权的特别程序,这是一种实现担保物权的非诉模式,其相较诉讼模式而言极大便利了债权人担保物权的实现,具体而言,实现担保物权的特别程序有如下优势:

 

一、程序简化

 

诉讼模式是二审终审,而根据《民事诉讼法》第一百七十八条之规定,实现担保物权的特别程序实行一审终审。因此,实现担保物权特别程序之民事裁定自作出之日起生效,可立即申请强制执行。

 

二、时间较短

 

通过诉讼模式来实现担保物权,一审普通程序期限为自立案之日起六个月,二审为三个月,有特殊情况可以延长。而根据《民事诉讼法》第一百八十条,除有特殊情况由法院院长批准延长的以外,实现担保物权特别程序应当在立案之日起三十日内审结。

 

三、成本较低

 

通过诉讼模式来实现担保物权,需要基于债权金额按法定比例缴纳案件受理费。而如申请通过特别程序实现担保物权,则债权人需要预缴申请费,目前法律层面并未明确规定申请费预缴标准,不同地方法院有不同的收费标准,有的法院按诉讼案件受理费的三分之一计收申请费(比如上海浦东法院),有的法院按诉讼案件受理费的二分之一计收申请费(比如深圳福田区法院),也有不少法院按每件50-100元收取案件受理费(如武汉海事法院、江苏靖江法院等)。因此,申请实现担保物权特别程序所需预缴的申请费相较诉讼模式的案件受理费而言是大大降低的。

 

此外,根据《最高人民法院关于适用〈中华人民共和国民事诉讼法〉的解释》第二百零四条,对于申请实现担保物权的特别程序,法院裁定拍卖、变卖担保财产的,申请费由债务人、担保人负担;法院裁定驳回申请的,申请费由申请人负担,但如申请人另行起诉的,其已经交纳的申请费可以从案件受理费中扣除。 

 

四、综述

 

基于以上分析,在遇到需实现担保物权的情况时,我们建议债权人可以先行向法院申请通过特别程序实现担保物权。如申请被法院支持,则大大节省了债权人的时间和成本;即使申请被法院驳回,根据《民事诉讼法》第一百九十七条之规定,债权人仍可另行向法院起诉,通过诉讼的方式实现担保物权,而这也并不会导致债权人成本的增加。

 

This English convenience translation is provided alongside the complete Chinese original, which prevails. Neither version constitutes legal advice on any specific matter.