[Abstract]In the security property system, the mortgagor is in danger of damaging the value of the mortgaged property based on possession, so the law provides for the mortgagee's right to preserve the value of the mortgaged property, while the pledgee does not possess the pledged property, but provides that the pledgee has the right to preserve the value of the pledged property, and what is more, the pledgee has a greater obligation to preserve the value of the secured property than the mortgagee. In the case of lien security, the state of possession and the risk pattern of the secured property are no different from the pledge security, but the law does not provide that the lien holder has the right to preserve the value of the lien property against the debtor. The security right governs the value right of the encumbered property, and the guarantor has the obligation to maintain the value of the encumbered property to satisfy the value interest of the security right. The other guarantor, as the owner of the secured property, should have a right to the value of the secured property based on ownership. The guarantor, as a sub-debtor, should also enjoy the legal benefit that its secured debt should not be unjustly extended, but the Civil Code guarantee system lacks legal norms to pay attention to and protect such rights and interests of the guarantor. In the case of the coexistence of the security of the real right and the guarantee under the main debt, the behavior of one party will affect the status and result of the rights and obligations of the relevant parties or the specific other party, and the affected party shall have the right to block, repair and claim compensation. However, the Civil Code and previous legislation have not yet paid attention to and mentioned the aforementioned legal loopholes or legal defects, which need to be supplemented and perfected by academic research.

[Key words]Secured property  Value preservation right  Protection of the interests of guarantors and debtors  Legal loophole

In terms of the usual legal concepts, legal principles and legal systems, the system of security interests is the main system of security of claims, and the purpose of creating security interests is to ensure the realization of claims, so the exercise of security interests is aimed at protecting creditors and security rights holders, and seems to have nothing to do with the guarantor. In fact, because of the risk of a reduction in the value of the encumbered property and the increasing burden on the debtor due to the default of the debt, the timely exercise of the security right by the security right must involve the interests of the guarantor and the debtor. At the same time, there are legal loopholes in the preservation of the value of the secured property in the security legal system, which have the same provisions in different circumstances and the same circumstances but different provisions. The above issues need further discussion.

1. Problems and their significance

The real right of security is to enhance the legal effect of the right of claim and promote the realization of the claim.In 1901, the German scholar Kohler first distinguished property rights into substantive rights (Substanzrecht) and value rights (Wertrecht).（1）Since then, because the property right attribute of the security right is characterized as the domination of the exchange value of the secured property, rather than the domination of the object itself, the academic circles define the security right as the "right of change" (Verwertungsrecht) ,(2) the right to change the value of the secured property and give priority to the payment. Thus, the right to a security interest is not realized in the form of a property right, or even prohibited from being realized in the form of a property right, but is essentially a priority right to be paid after the realization of the encumbered property. (3) Furthermore, the discount to offset the debt at the time of the realization of the security right is only a form of special priority compensation right, which is essentially a one-step realization of the right to realize the realization of the realization plus priority compensation, the difference between the discount and the amount of the debt still needs to be more refunded and less compensated, and the discount should also reflect the liquidity of the secured property in the market, that is, the market price. Based on this legal principle, Article 386 of the Civil Code stipulates that "in case the debtor fails to perform the due debt or the parties agree to realize the real right of security, the real right of security shall enjoy the priority of compensation for the secured property according to law, unless otherwise provided by law". Articles 416, 436 and 453 of the Civil Code all stipulate that the realization form of the real right of security is the priority of compensation, and the discount and sale should be carried out with reference to the market price.

In view of the fact that the security right dominates the value of the secured property, it is a kind of value right, especially in the mortgage legal relationship, because the mortgagee does not possess the mortgaged property, it is more important to prevent the mortgagee from damaging the value of the mortgaged property. Traditionally, when the value of the mortgaged property may decrease and has decreased, the various special rights of the mortgagee are collectively referred to as the mortgage preservation system, which is specifically divided into two types: one is the right to prevent the decrease of the value of the mortgaged property, including the right of non-acting as a request and the right of preservation and disposition of the mortgagee; the other is the right of remedy for the decrease of the value of the mortgaged property, including the restoration, increase of the mortgage and the right to claim. (4) In the legal relationship of pledge, because the pledged property is occupied by the pledgee, the pledgee cannot actually damage the value of the pledged property based on the act of possession and use, while Article 433 of the Civil Code still stipulates that if the value of the pledged property is impaired "not due to the pledgee", the pledgee shall have the right to preserve the value of the pledged property. (5) The Civil Code does not provide for the right of the lien holder to preserve the value of the lien property. For mortgage security and pledge security with different possession states, the right to preserve the value of the secured property of the security right holder is provided, while for pledge security and lien security with the same possession state, it is provided that the pledgee has the right to preserve the value of the secured property and the lien holder does not. It can be seen that the logical relationship between mortgage, pledge and lien in the right to preserve the value of the secured property is obviously not smooth, and there is a need for discussion. There is even a view that the lien holder has the right to preserve the value of the unsecured property. "Because the lien lacks the recourse and effect of the real right, the existence of the lien is based on the possession of the lien property as its survival element, and the loss of possession is the elimination of the lien. The original lien has been eliminated, and the lien itself is a legal security interest, and there is no agreement between the parties to establish a security, so naturally it cannot be said that the original security relationship can continue." (6) However, the author is puzzled that in the case of the loss of possession of the right holder in the pledge of movable property, the original right of quality is not eliminated? In addition, since the reason why the mortgagee enjoys the right to preserve the value of the secured property is that the secured property is occupied and used by the mortgagee, and the mortgagee may endanger the value of the secured property, the mortgagee who "damages the value of the mortgaged property due to the mortgagee's behavior" may exercise the right to preserve the value of the secured property; while the pledged property is not possessed by the mortgagee, and the mortgagee does not possess the mortgagee, in order to also create a right to preserve the value of the secured property for the pledgee, the exercise conditions had to be set as "impairment of the value of the pledged property not caused by the pledgee". However, whether the exercise condition is in accordance with the law and logic, whether the quality of the pledge property will not or cannot damage the value of the pledge property. For this question, the author did not pay attention to someone to explore the study.

The security right is the exchange value of the dominant object and is a kind of value right. The security interest holder has the interest in the value of the secured property and can dispose of the value of the secured property, so it has a legally protected interest in the value of the secured property and therefore establishes the right to preserve the value of the secured property. However, the guarantor in rem, as the owner of the encumbered property, has absolute control over the final value and residual value of the encumbered property, and the dominant value of the security right holder is limited to the amount of the secured obligation. Further, the guarantor in rem, as a sub-debtor, also has the right to defend the amount of the debt and the size and fairness of the liability. Therefore, in the case of the security interest holder deliberately delaying the realization time of the secured property, increasing the amount of the debt, losing the optimal realization point and value of the secured property, it obviously infringes the residual value interest of the real interest guarantor as the owner of the secured property and increases the debt burden of the real interest guarantor as the sub-debtor. The legal system of security should set up legal norms for the guarantor in rem to prevent such infringement. Articles 437 and 454 of the Civil Code provide for such rights of the plunderer and the debtor, respectively (7). However, the Civil Code does not regulate the right of the mortgagor, and the relevant judicial interpretation is not clear, and the academic circles rarely mention it.

In the series of rights and obligations constructed by the main debt contract, real right guarantee contract and guarantee contract, the behavior of one party will affect the rights and obligations of other parties or one party. The subject affected by or will be affected by the rights and obligations should enjoy the right of claim for the behavior of the actor with certain legal protection, especially in the case that the parties or each other have formed agreement or trust in the construction of the above series of rights and obligations, more so. As a result, the debtor and guarantor shall enjoy the right to prevent, block or claim compensation for acts that damage the value of the secured property and increase the burden of the debtor and guarantor and harm the interests of the debtor and guarantor. However, the traditional civil law theory, the legislative practice of various countries, the Chinese Civil Code and the academic circles have not taken into account this issue. The author believes that it is necessary to try to study.

The rights provided for in Articles 1998 and 433 of the Civil Code are traditionally referred to in theoretical circles as the right to recover the value of secured property (mortgaged property, pledged property). The author believes that, first, the literal meaning and normative connotation and extension of these laws are not limited to requesting the restoration of the value of the secured property. Second, the right to the value of the secured property is not limited to the right holder, but the guarantor should also enjoy it. The specific reasons will be detailed in this article. Therefore, the author calls the right to preserve and maintain the value of the secured property to fairly handle the rights and obligations of all parties in this article.

What is a right? The right holder, the interests that are natural for people or given by law to maintain and protect by means prescribed by law, often correspond to the performance of certain obligations by others. "Power is not a physical object, nor is right a physical object. In fact, they do not have any broader genera. They, together with duties, obligations and many other similar things, are fictions whose meaning cannot be explained in any other way than by showing their relationship to the real". (8) Bentham proposed to explain the concept of rights by "showing their relationship with the real body": "You have the right to do what you want me to do (referring to political rights). If I don't do it, I should be punished according to the law according to the requirements made in your name." (9) Rights emphasize a final state of interest protected by law. In his early book "The Spirit of Roman Law", Yellin first put forward the view that the essence of rights is "interests protected by law". The interests mentioned here include both social interests and personal interests. Yellin believes that individuals The ultimate goal of claiming rights is not only to protect personal interests, but also to defend social interests ". (10) A return to the status of a priority interest in the realization of the proceeds of the encumbered property in the case of the rights of the security holder in the security interest.

What is power? Bentham believes that "power is a right". (11) In the "Introduction to the Principles of Morality and Legislation" published in 1789, Bentham still insisted: "Although power is not a right, it is included under rights within certain limits, so that where the word power can be used, the word right can also be used". (12) Thus, the author further believes that power under the right is born out of the right, and is premised on the existence and realization of the right. Power, which emphasizes a dynamic or process, is the method and means of implementation granted by law in order to realize the right, or the power of implementation conferred by law, including the power of right relief in private law. "To understand how to interpret a right, one need only understand the kind of action that would constitute a violation of the right in the circumstances in question". (13) It can be seen that power exists for the realization of rights, and in most cases even contains the nature of coercion. "Power is the ability to compel others to act according to the will of the power holder, which the forced person would not otherwise do". (14) Specifically in this article, as far as the rights of the security right holder in the security right are considered, the security right holder proposes to discount, auction or sell the secured property, or requests the people's court to auction or sell the secured property, all of which belong to the exercise of the power of the security right, and obtains the priority amount of the realization value of the secured property, which belongs to the right status of the security right.

At the level of legal thinking, power arises and exists for rights, and the right holder is usually the same as the right holder, such as claims and security interests in private law, where it is usually the right holder who exercises the power in private law. However, the right holder and the power holder are sometimes independent, and the common situation is the separation of the right holder and the power holder in the external effect of the agency legal relationship: the legal rights and obligations of the agent belong to the person, and the agent has the right to perform the legal act. In the field of public law, the strict separation between the right holder and the power holder is fully reflected. The state organs and their employees are the power holders, while the people are the right holders. The interests of the exercise of power belong to the people rather than the public servants. In fact, the exercise of public power and the ownership of rights and interests can be regarded as the projection of the legal system of entrustment and agency in social public management and national governance.

In view of the realization of the right is ultimately a static, conclusive state of interest, is purely beneficial, the acquisition of the right state corresponds to the obligation of the obligor's debt. Therefore, the right holder can waive the right without harming the obligor. Whether the right holder can give up his power at will or neglect to exercise it should be another matter. The exercise of power is not only related to the realization of rights, but also constitutes the obligation of the person in power. In particular, the non-exercise or neglect of the exercise of power has constituted a damage or threat to the interests of others or will unilaterally increase the rights and interests of the right holder or the power holder, the exercise of power should become the duty of the power holder. For example, the exercise of public power by a public official is itself the performance of an obligation to manage public affairs; the exercise of agency power by an agent is itself the performance of an obligation of agency relative to himself.

In summary, it can be seen that the significance of the distinction between rights and powers lies in the fact that the security right holder may waive the right in the security interest, I .e. waive the right to priority payment, and the debtor will not suffer the consequences of unbenefits as a result. The exercise of the power of the security right is a dynamic and procedural act, whether the security right holder exercises the power of the security right in a timely manner, whether the security property is properly kept, etc. may not only affect the interests of the guarantor, but also may affect the interests of the principal debtor and the guarantor. This paper will also analyze the situation that the right holder of the security right does not properly exercise or neglects to exercise the security power may damage the guarantor, the principal debtor and the guarantor, and points out that the security legal system does not identify the interests that may be damaged by the guarantor, the principal debtor and the guarantor as the interests protected by law, I .e. the legal interests, and stipulates the protection method, which constitutes a legal loophole or defect.

(I) the traditional right to preserve the value of encumbered property is intended to protect the interests of the security right holder and the interests of the claim.

The impairment of the value of the secured property will inevitably reduce the final realization value of the secured property, and thus damage the priority payment amount when the final right of the security right is realized, so the law needs to give the security right holder certain power to preserve and maintain the value of the secured property, which is the right to preserve the value of the secured property. From the perspective of the right holder of the security right, it can also be called the right to restore the value of the secured property. In particular, in the case of mortgage security, after the establishment of the mortgage, the mortgaged property continues to be occupied, used and managed by the mortgagor, and if such acts of the mortgagor result in or may result in the impairment of the value of the mortgaged property, the mortgagee should be given the preservation of the value of the mortgaged property to ensure the realization of the purpose of the mortgage.——The right to settle a claim as agreed. According to Professor Jiang Xingzhi, "Even if the mortgagee is only at the disposal of value, the mortgagee's income to the real subject matter is still subject to certain constraints (value maintenance obligation) according to the creation of the mortgage"; （15）Mr. Xie Quan pointed out that "it should not be too much to say that the mortgagee has the right to maintain the value of the mortgaged property". (16) Articles 871 and 872 of the Civil Law of Taiwan, China, "are specific provisions for the right to maintain the value of mortgaged property". (17) Article 408 of the Civil Code also clearly stipulates: "If the mortgagee's behavior is sufficient to reduce the value of the mortgaged property, the mortgagee has the right to request the mortgagee to stop his behavior. If the mortgagor does not restore the value of the mortgaged property or provide security, the mortgagor shall have the right to request the debtor to pay off the debt in advance."

(II) There is a legal loophole in the use of "causes not attributable to the pledgee" as a condition for the pledgee to enjoy the right to preserve the value of the secured property.

In the case of a pledge of a security interest, the pledged property is usually in the possession of the secured party and there is generally no derogation from the value of the encumbered property as a result of the conduct of the guarantor. However, in the field of rights pledge, there are also situations such as accounts receivable pledge, share pledge, fund share pledge and charge right pledge that need to be registered and established without rights certificate. Even if the rights pledge of rights certificate is delivered, the value source of the pledged rights is not necessarily rooted in the rights certificate, but may be affected by the basic legal relationship and behavior, this underlying legal relationship and conduct is beyond the control of the pledgee. Article 433 of the Civil Code stipulates: "If the pledged property may be damaged or significantly reduced in value due to reasons not attributable to the pledgee, which are sufficient to endanger the rights of the pledgee, the pledgee shall have the right to request the pledgee to provide corresponding security; if the pledgee does not provide it, the pledgee may auction or sell the pledged property, and agree with the pledgee to pay off the debt or deposit the proceeds of the auction or sale in advance.". At the same time, in accordance with the provisions of Article 446 of the Civil Code, the preservation of the value of pledged property in the case of a pledge of rights may be subject to the provisions of Article 433 of the Civil Code.

"A loophole is an unsatisfactory incompleteness within a whole. As applied to the law, the concept of a loophole is an unsatisfactory incompleteness within the legal whole". (18) From this point of view, article 433 of the Civil Code does not exclude natural wear and tear, third-party causes, force majeure and other circumstances from the situation in which the pledgee may exercise the right to preserve the value of the pledged property, and the proviso should be an unsatisfactory incompleteness in the legal norm as a whole. According to the view of German civil law scholar Zipelius, legal loopholes can be divided into two categories: "one category is loopholes that can be seen from the expression of legal provisions (for this category of loopholes, I call it briefly" expression loopholes "), and the other category is loopholes that can be determined through evaluation (for this category of loopholes, I use the name of" evaluation deficiency loopholes "that is not very accurate)". (19) On the question of whether Article 433 of the Civil Code constitutes a loophole in expression, some people may question that the expression "for reasons not attributable to the pledgee" has completely expressed the situation in which the pledgee can exercise the right to preserve the value of the pledged property, and there is no loophole in the expression of the legal norm due to incomplete expression. The author thinks that the legal loophole lies in the incompleteness of the legal norms as a whole, and is not limited to the incompleteness of the expression. As Zipelius said, there are also loopholes of evaluation deficiency. "A legal loophole of the evaluative type refers to a situation in which a legal norm, although it is not necessary to supplement its literal meaning, needs to be corrected for the sake of justice". (20) Here, the justice of Cipelius as the basis for evaluating the evaluation of deficient legal loopholes is a broad concept of justice, which includes not only justice in terms of value judgments such as fairness and reasonableness, but also justice in terms of consistency in the legal norm system, as well as purposeful justice in which the circumstances are too broad to break through the purpose of legal norms. "If the law is not sufficient to fulfill the task of solving legal problems justly, it can be regarded as needing to be supplemented".（21）

According to the provisions of Article 1998 of the Civil Code, when the mortgaged property is under the control of the mortgagor, only when the mortgagor's behavior causes the value of the mortgaged property to be impaired, the mortgagor has the right to preserve the value of the secured property. For the impairment of the value of the mortgaged property caused by natural loss, objective reasons, force majeure, etc., the mortgagor has no right to preserve the value of the secured property. In contrast to the pledge guarantee, the pledgee has lost control of the possession of the pledged property, in which case the pledgee is required to be liable for the impairment of the value of the pledged property caused by natural wear and tear, objective causes, force majeure, etc., which is obviously unfair compared with the mortgagee's liability for the impairment of the value of the mortgaged property. According to the rule of "lifting weights to light", the quality person should not bear a heavier responsibility for the preservation of the value of the secured property than the mortgagor. According to Cipelius, loopholes are usually found in situations where people encounter a situation that has not yet been provided for by law, where similar situations have already been provided for, and where it is considered appropriate to provide the same for the previous situation. (22) "In the case of the law of legal loopholes, the principle of systemic justice and the principle of" unity of law "also need to be considered. According to these principles, the solution of legal problems should not only be logically integrated into the system of legal norms of the same level and higher level, but also be consistent with this system in purpose". (23) Based on this theory and logic, considering that the purpose of the mortgagee's right to preserve the value of the secured property and the agreement of the pledgee are to avoid the impairment of the value of the secured property and endanger the claim, and considering that the mortgagee's right to possess, manage and control the secured property far exceeds that of the pledgee, the author thinks that the circumstances or conditions under which the pledgee enjoys the right to preserve the value of the secured property under Article 433 of the Civil Code cannot be more lenient than the applicable circumstances and conditions under which the mortgagee enjoys the right to preserve the value of the secured property under Article 1998 of the Civil Code, and should be consistent.

"A norm may be too broad by its literal meaning to include in the scope of application also the circumstances to which the norm of the clause should not apply from the point of view of justice. It is legitimate here to exclude substantially different circumstances from the scope of application of the norm". (24) Based on this, the author also believes that the scope of "reasons not attributable to the pledgee" in Article 433 of the Civil Code is too broad, resulting in the responsibility for the impairment of the value of the secured property caused by natural wear and tear, objective reasons, third-party acts, force majeure and other reasons being attributed to the pledgee. According to fairness and justice, the pledgee shall not have the right to preserve the value of the secured property under such circumstances. Therefore, even if the applicable circumstances stipulated in Article 433 of the Civil Code are not revised and consistent with Article 108, a proviso clause should be added to Article 433 of the Civil Code, that is, "except for damage or obvious reduction in value of pledged property caused by natural wear and tear, objective reasons, third-party acts, force majeure and other reasons".

(III) The failure to provide for the right of the lien to preserve the value of the lien property constitutes a legal loophole.

In the case of lien security, according to the classic civil law general and legislative rules, and article 447 of the Civil Code, the lien applies only to movable property. The legislator may think that the lien movable property is in the possession of the lien holder, and there is generally no derogation from the value of the secured property as a result of the debtor's (guarantor) actions, so there is no need to develop a legal norm for the right to preserve the value of the lien property. Therefore, the Civil Code does not provide for the right of the lien to preserve the value of the lien property.

However, compared with the system of preservation of the value of the secured property of movable property pledge, the preservation of the value of the secured property of movable property lien has appeared a loophole in the legal norms. As mentioned above, a loophole is an unsatisfactory incompleteness within a whole. As applied to the law, the concept of loophole refers to an unsatisfactory incompleteness within the law as a whole.（25）In the three security interests of mortgage, pledge and lien as security for the performance of debt, the mortgagee and the pledgee enjoy the right to preserve the value of the secured property, as one of the rights in the system of security interests, in order to ultimately guarantee the realization of the main claim. It can be seen that the right to preserve the value of the secured property should be included in the bundle of rights of the security interest, and the lienholder, as one of the types of security interest, does not enjoy the right to preserve the value of the secured property, which clearly belongs to the "unsatisfactory incompleteness" of the bundle of rights of the security interest, which constitutes a legal loophole./span>

In addition, mortgage security, pledge security, lien security has similar properties, are based on the security of the security right, the control is the value of the secured property rights. From the point of view that "the obligation to maintain value is derived from the property and value characteristics of the security interest", the debtor in the lien relationship should be provided for this obligation. As far as the nature of the property right is concerned, the lien, like the right of quality and mortgage, is a "right of value", and the relative has its own obligation to maintain its value stable. In Japan, where the "value maintenance obligation is derived from the security relationship", the debtor in the lien relationship is also found to have this obligation in the same way that the "security relationship" exists. (26) In particular, a pledge of movable property and a lien security are more similar and even identical in terms of the nature of the encumbered property, the manner in which the right is realized, etc. Movable property pledge and movable property lien, the security right holder is in possession of movable property, the guarantor's ability to influence the value of the secured property is the same, there is also the risk of impairment of the value of movable property and endanger the security interest. Here, we have encountered a situation that has not yet been provided for by law, that is, the law does not provide for the right of the lien holder to preserve the value of the property, and for similar situations, such as mortgage security, pledge security has been provided for, we think it is appropriate to make the same provision for the former situation. (27) Therefore, the legal norms of the lien's right to preserve the value of the secured property should be formulated and perfected by reference to the norms of the right to preserve the value of the secured property enjoyed by the pledgee.

Some people may question that the creation of pledge security is based on the legal act of the intention of both the security holder and the guarantor, and that the pledgor shall voluntarily pledge the property and transfer possession, and shall have the obligation to preserve the value of the pledged property; while the creation of the lien is based on the unilateral lien of the lien holder (creditor) (or the legal provisions), the debtor has not established the intention of the lien security, therefore, there should be no obligation to preserve the value of the lien property. From a superficial point of view, the assertion seems reasonable. However, the author thinks that the system design of the value risk factor, risk source, risk attribution and value preservation of movable property guarantee should not be based on whether the possession of the secured movable property is based on the consensual acquisition of the establishment of the guarantee or on the lien of the law. Because the normative intent of the legal norm of the right to preserve the value of the encumbered property is to point to the value of the encumbered property that occurs after the security right has been established and the movable property has been transferred to the possession of the security right holder, it has nothing to do with how the security right holder obtains possession of the encumbered property.

In addition, according to Article 447 of the Civil Code, "If the debtor fails to perform the due debts, the creditor may lien the movable property of the debtor that has been legally possessed and have the right to receive priority compensation for the movable property", the establishment of the lien is based on the debtor's previous agreement to transfer the movable property to the lien holder (creditor) based on the legal possession of the meaning, and the ownership of the lien property belongs to the debtor. This should be distinguished from the retention-of-title atypical security, in which the retention-of-title property belongs to the creditor and the creditor (seller) takes possession of the retention-of-title property based on its ownership possession. Article 448 of the Civil Code stipulates: "The movable property retained by a creditor shall belong to the same legal relationship as the claim, except for the lien between enterprises". It can be seen that the property retained by the lien holder is usually transferred from the debtor to the creditor on the basis of the same contractual legal relationship, and is based on the contractual meaning of the agreed possession, such as the transfer of possession of the subject property in the contractual relationship of processing, customization, and contracting. In this connection, the possession of the retained property is not the result of a purely unilateral legal act, but is based on the contractual agreement of the parties.

As for the consensual meaning of creating a lien guarantee legal relationship between the two parties, the author believes that under the condition that the legal system and order of the lien guarantee already exist, when the debtor and the creditor sign the relevant contract that can establish the lien guarantee, the two parties already have the contact of the meaning of the movable property under the lien contract in the future, and the legal effect of the meaning has been preset by Article 447 of the Civil Code, the legal effect of the lien security can be produced only by the creditor's final establishment of the lien by the act of lien property. Similar to the case where the law has stipulated that the deposit can be used as a guarantee for the performance of the contract, the two parties to the contract have agreed that the deposit clause has the meaning of guarantee, and the delivery of the deposit is the guarantee effective, no matter whether the two parties agree that the deposit will not be returned when the party delivering the deposit fails to perform or the deposit will be returned twice when the party accepting the deposit fails to perform, between the parties have been constructed and there is a meaning (effect meaning) that the deposit will not be returned or double the deposit will be returned. The meaning expressed here refers to the effect meaning based on the presupposition of the legal order, rather than the subjective will of the signer. "We have found that the intention does not contain a statement of some existing will, but is aimed at some legal effect to be achieved". (28) In this light, the debtor's willingness to provide a lien or not at the time of the contract or the delivery of movable property under the contract, or whether or not a lien clause is written in the contract, is not an expression of meaning in the legal sense. The legal meaning is that in the event of the debtor's non-performance of the debt, the creditor can achieve the legal effect of the lien security by lien the movable property under the contract, which is the legal effect to be achieved. Carl. According to Larenz, the expression of meaning is the expression of effect, not the expression of will, and the logical characteristic of the expression of meaning is that it is a volitional-emotional expression, but it points to the legal effect. Thus, the expression "it should be so effective", rather than a mere statement or reformulation of "I intend it to be so effective", identifies the expression as a volitional expression that points to the meaning of legal occurrence. We refer to this meaning of meaning as its "effective meaning". (29) It can be seen that the meaning is not a notice of the will of the civil subject, nor does it have legal effect according to the will of the civil subject. "In other words, an expression of meaning is a volitional expression with a certain legal effect as the content, and the legal effect is called the legal effect that should occur". (30) The "legal effect" here is not necessarily the effect expected by the ideographic person. Even if the ideographic person does not know the legal consequences of his intention, it does not prevent the "legal effect" of his intention and his behavior from being added to him. It is often that the ideographic intention is intended for one effect while the law gives his intention and behavior another effect. "Although the expression of intention as an expression of effect also points to the effect of a legal fact, it is not the expression of intention, but the objective law gives its effect to the fact, and the objective law allocates the expression of intention with its alleged legal consequences". （31）

The above expounds that the lien shall enjoy the right to preserve the value of the secured property as one of the complete bundles of security rights with the mortgagee and the pledgee, and that the lien on movable property and the pledge of movable property shall be granted the same right to preserve the value of the secured property. In view of the fact that the ownership of the lien property belongs to the debtor, if the lien holder's claim for the preservation of the value of the secured property is not established, there is also a lack of legal norms for the lien holder to sue the owner for tort compensation or contractual breach of contract when the debtor as the owner destroys the value of the lien or property. The mortgagee and the right holder are also not entitled to claim the risk of loss and impairment of the value of the secured property if it is not based on the legal norm of the preservation of the value of the secured property. In fact, according to the usual practical background of lien security, according to the principle of weightlifting to light, the protection of the lien's right to preserve the value of the secured property should be stronger than that of the movable property right. The creation of the pledge of movable property and the transfer of possession of movable property belong to the complete consistency of the voluntary agreement of the two parties and the legal effect, and the incentive of the pledgee to interfere with the state of the pledge movable property and possession is weak. Under the lien on movable property, the effect of the lien security is given by law, not by the debtor's will, and the debtor's motivation to seize and destroy the lien property will be much stronger than that of the quality person. Obviously, the lienor needs the protection of the legal norms of the preservation of the value of the secured property.

(IV) The use of "reasons not attributable to the pledgee" as a condition for the right holder to enjoy the right to preserve the value of the secured property, and the failure to provide for the right of the lien holder to preserve the value of the secured property, are legal loopholes of an inherited nature.

The so-called legal inheritance is the continuation, inheritance and succession of legal systems in different historical periods and different historical types. Due to the continuous evolution of human history and the continuous development and innovation of social economy, legal inheritance should be the abandonment of the old legal system by the new legal system, rather than copying it. The word "sublation", derived from German classical philosophy, has both negative and positive meanings. In the negative sense, it means to cancel or abandon, in the positive sense, to keep or preserve, so as to realize the perfection of the legal system in the continuous inheritance. To explain the inheritance in the process of legal development by sublation can vividly and concretely reveal the characteristics of legal inheritance:

In the objective process of legal development, every new legal system is a kind of negation to the old legal system, but it is not a simple negation or complete abandonment, but a negation contains affirmation, a new affirmation realized through the negation of negation, so that the process of legal development presents the nature of abandoning and preserving the old law, and obtaining sublimation in inheritance and preservation. From the point of view of the subject dealing with the inheritance of law, the inheritance of law is actually a kind of critical, that is, selective inheritance, after reflection, selection, transformation, absorption of some still available factors in the old law, giving it new value connotation and social function, making it an organic part of the new legal system. Therefore, it is wrong to take the doctrine of copying or copying the old law without analysis and the nihilism of fundamentally denying the existence of historical connection and inheritance relationship between the new law and the old law.

As mentioned above, it is unfair and unreasonable to the pledgee to regard "the right to preserve the value of the secured property as a condition for the pledgee to enjoy the right to preserve the value of the secured property, which violates the legislative purpose of the right to preserve the value of the secured property. The cause of the attribution is stipulated in Article 70 of the original Guarantee Law as "if the material has the possibility of damage or obvious reduction in value, which is sufficient to endanger the rights of the pledgee, the pledgee may require the pledgee to provide the corresponding guarantee. If the pledgee does not provide it, the pledgee may auction or sell the pledge and agree with the pledgee to use the proceeds of the auction or sale to pay off the secured claim in advance or to deposit it with a third party agreed with the pledgee.", In Article 216 of the Property Law, it is changed to "If the pledged property is damaged or its value is significantly reduced due to reasons that cannot be attributed to the pledgee, which is sufficient to endanger the rights of the pledgee, the pledgee has the right to require the pledgee to provide corresponding security; If the pledgee does not provide it, the pledgee may auction and sell the pledged property, and by agreement with the pledgee to pay off the debt or deposit the proceeds of the auction or sale in advance.", In Article 433 of the Civil Code, the original state is inherited as "if the pledged property may be damaged or its value significantly reduced due to reasons not attributable to the pledgee, which are sufficient to endanger the rights of the pledgee, the pledgee has the right to request the pledgee to provide corresponding security; if the pledgee does not provide it, the pledgee may auction and sell the pledged property, and agree with the pledgee to pay off the debt or deposit the proceeds of the auction or sale in advance.". It can be seen that, according to the literal meaning of Article 70 of the Security Law, the liability for the impairment of the value of the pledged property caused by the pledgee may be attributed to the pledgee, and there is an obvious legal loophole, which is amended by Article 216 of the Property Law. However, Article 216 of the Property Law also does not take into account the liability of the pledgee in the case of impairment of the value of the pledged property due to reasons other than the pledgee, which is also a legal loophole, and the legislation of Article 333 of the Civil Code does not abandon the provisions of the law, but rather inherits in the original state.

In addition, the right to preserve the value of a pledge of movable property is provided for in article 70 of the Security Law and article 216 of the Property Law, but the Security Law and the Property Law do not provide for the right to preserve the value of a secured property with a lien on movable property, which, as mentioned above, is a legal loophole. The legal loophole already existed at that time, but the legislation of the Civil Code has not been found and amended, which belongs to the legal loophole of inheritance.

The creation of a security interest does not change the identity of the owner of the guarantor, and the law should also establish a system of preservation of the value of the secured property for the guarantor when the actions of the security holder may endanger the interests of the guarantor (owner). In the author's view, the guarantor's right to preserve the value of the secured property is usually divided into two categories, one is to prevent and remedy the right of the security right holder to damage the secured property, and the other is to require the security right holder or request the court to realize the secured property in a timely manner to repay the debt.

(I) In the case before the security liability arises, it does not constitute a legal loophole to provide that the pledgee and the debtor shall have the right to prevent and remedy the pledgee and the lienholder's right to damage the secured property, without providing for the mortgagor to enjoy such rights.

Before the expiration of the term of the principal obligation, if the impairment of the value of the encumbered property will affect the realization of the security right of the security right holder, the right to preserve the value of the encumbered property should be established for the security right holder. On the other hand, the establishment of a security obligation based on property rights involves only one contingent and potential legal liability at the time of its establishment, the secured property is not necessarily discounted, auctioned, sold, etc., and there is a reasonable expectation that the secured property and its related rights and interests will be returned to the guarantor as a result of the ultimate release of the security burden. In the case of pledge security and lien security, because the security right holder has possession and control of the encumbered property, if the security right holder's conduct results in the impairment or loss of the value of the encumbered property before the expiration of the principal obligation, it will inevitably impair the legitimate interest of the guarantor in the encumbered property. So, in the case of such an infringement, can the guarantor, on the basis of the identity of the owner, claim compensation from the security right holder as a possessor?

Ownership is at the core of property rights, and other property rights (restrictions on property rights) are rights that are guided from ownership. In other words, a restricted property right is a right that is separated from the power of ownership, and is the right formed by the owner transferring part of the power of his ownership to the holder of the restricted property right for a certain period of time and under certain conditions.（32）Therefore, ownership is called self-property right, complete property right, and other property rights other than ownership are called other property rights, restricted property rights or limited property rights. The essence of property rights does not lie in their dominant nature, but rather in their absoluteness, that is, their effectiveness against all third parties, and ownership is even more so. The security right is separated from the right of ownership, and the possession of the secured property is also separated from the ownership for the purpose of creating and realizing the security right. The existence and exercise of such restrictions on property rights should not infringe ownership and its rights and interests.

For this reason, the legal system of security should establish the right to preserve the value of the secured property for the guarantor of the pledge guarantee and the lien guarantee. For this reason, the system of preservation of the value of the pledged property by the pledgee under article 215 of the original Security Law and article 215 of the original Property Law is inherited by article 132 of the Civil Code as follows:"The pledgee shall have the obligation to take good care of the pledged property; if the pledged property is damaged or lost due to improper custody, he shall be liable for compensation. If the pledgee's actions may cause the damage or loss of the pledged property, the pledgee may request the pledgee to deposit the pledged property, or request early repayment of the debt and return of the pledged property."; Article 86 of the Guarantee Law and Article 234 of the Property Law stipulate that the debtor's right to preserve the value of the retained property is inherited by Article 451 of the Civil Code as follows: "The lienor has the obligation to properly keep the retained property; if the retained property is damaged or lost due to improper custody, it shall be liable for compensation."

In the case of mortgage security, the mortgaged property is occupied and used by the mortgagor, and the mortgagor does not have an objective basis for derogating from the value and legal interests of the mortgaged property based on possession and control, and Article 106 of the Civil Code even provides that the mortgagor may transfer the mortgaged property during the mortgage period. Therefore, the Security Law, the Property Law and the Civil Code do not provide for the mortgagee's right to preserve the legal interest and value of the mortgaged property.

Therefore, before the expiration of the term of the principal debt, the pledge, lien and mortgage have different states of possession of the secured property, and their legal interests and values are harmed by the security right holder. Therefore, it seems fair and reasonable to establish a system of preservation of the legal interests and values of the secured property for the guarantor of the pledge and lien but not for the mortgagor in the legal relationship of the mortgage.

(II) In the case where the liability for security in rem has been created, it is a legal loophole to provide that the pledgee has the right to request timely realization of the pledged property and the debtor has the right to request timely realization of the retained property, while not providing that the mortgagor has the right to request timely realization of the mortgaged property.

As mentioned earlier, the security right governs the exchange value of the encumbered property, and the security right holder is of course very concerned about the time of realization of the exchange value of the security and the size of the amount, so the law usually creates a right to preserve the value of the encumbered property for the security right holder. The time of realization of the exchange value of the guarantee and the size of the amount also affect the interests of the guarantor, the time of realization will affect the exchange value of the secured property, and the different time of realization will lead to different amounts of debt to be repaid, both of which affect the balance of the exchange value of the secured property that the guarantor can obtain after debt repayment.

After the expiration of the performance period of the main debt and the security liability of the security interest arises, the state and situation of the guarantor's legal interest and the preservation of the value of the secured property in the three legal relationships of pledge, lien and mortgage are the same or at least similar, all of which should be protected equally or similarly by realizing the exchange value of the secured property to pay the debt. In the case where the guarantor is the same as the principal debtor, when the principal debtor is unable to perform the debt after the expiration of the term of the principal debt, punitive debt burdens such as liquidated damages and damages for breach of contract will be incurred. If the guarantor fails to exercise the power of the security interest in time: agree with the guarantor to discount, auction or sell the secured property or apply to the people's court to auction or sell the secured property to repay the creditor's debt, the debtor's debt burden will increase over time, significantly harming the debtor's interests. On the other hand, when the security liability of the security interest arises after the expiration of the term of the principal debt, if the security party fails to exercise the power of the security interest in time, and makes an agreement with the guarantor on the discount, auction or sale of the security property or applies to the people's court for auction or sale of the security property to realize the repayment of the creditor's rights and debts and return the remaining amount after the realization of the security property to the guarantor, would prejudice the guarantor's interest in the exchange value of the encumbered property. It can be seen that in the case of the principal debtor and the guarantor, the delay in realizing the secured property leads to a decrease in the amount of realization, which will affect the principal debtor's ability to pay off the debt with the amount of realization of the secured property and increase the burden on the debtor.

In the mortgage legal relationship, if the mortgagee does not exercise the mortgage property right in time after the mortgage guarantee liability arises at the expiration of the principal debt term, the damage to the mortgagor and the principal debtor in the impairment of the value of the mortgaged property and the increase of the principal debt burden is the same as the damage to the guarantor and the principal debtor in the pledge guarantee and lien guarantee relationship. As Cipelius said, one encounters a situation that has not yet been provided for by law, whereas a similar situation is already provided for, and one considers it appropriate to provide for the same in the previous situation.（33）However, the Security Law does not provide for a system of preservation of the mortgagor's secured property legal interest and value in such circumstances, which is a legal loophole. These legal loopholes have not been filled in the "Property Law", but have continued to be brought into the "Civil Code" and have not been perfected and filled. The reason for this is that the legislator considers that the pledged property and the lien property are in the possession of the security right holder, and that the security right holder does not exercise the security right in time to realize the realization of the security right in violation of the security right is in danger of realizing the purpose of debt repayment. In fact, the risk of violating the purpose of realizing the real right security lies in the inability to realize the debt in time, not in the possession of the security right holder. As mentioned above, the subject matter of the security right holder and the guarantor's control and control is the exchange value of the secured property, not the relationship of possession. In this substantive reason, the timely realization of the secured property in the mortgage guarantee and pledge guarantee and lien guarantee has the legal interest protection effect on the guarantor (debtor), there is no difference.

Article 106 of the Civil Code states:"During the mortgage period, the mortgagor may transfer the mortgaged property. If the parties have agreed otherwise, they shall comply with their agreement. If the mortgaged property is transferred, the mortgage shall not be affected. If the mortgagor transfers the mortgaged property, he shall notify the mortgagee in time. If the mortgagee can prove that the transfer of the mortgaged property may impair the mortgage, he may request the mortgagor to pay the mortgagee the proceeds of the transfer to the mortgagee in advance of the debt or deposit. The excess of the transferred price over the amount of the claim belongs to the mortgagor, and the shortfall is paid off by the debtor". Based on this provision, legislators and scholars may think that since Article 106 of the Civil Code already stipulates that the mortgagor can transfer the mortgaged property, when the mortgage liability arises at the expiration of the principal debt period, the mortgagor can transfer the mortgaged property to repay the debt. It seems that the legal loophole that the mortgagor does not exercise the mortgage right in time and causes the mortgagor's interests to be damaged does not exist. In fact, it is not:

First of all, Article 106 of the Civil Code regulates the transfer of mortgaged property during the mortgage period and when the period of performance of the principal debt has not yet expired, and does not provide for the transfer of mortgaged property after the expiration of the term of the principal debt. From the point of view of risk analysis and fair judgment, the real risk that the principal debtor cannot repay the debt before the maturity of the principal debtor has not arisen, and the mortgage right continues to exist in the mortgaged property after the mortgagor transfers the mortgaged property, and does not endanger the interests of the mortgagee. When the term of the principal debt expires and cannot be repaid, the principal debtor's risk of debt repayment already exists, and both the mortgagee and the mortgagee need to realize the mortgage in accordance with the provisions of Article 10 of the Civil Code, and it is not necessary and impossible to allow the mortgage to continue to exist based on the transfer of the mortgaged property. It can be seen that the provisions of Article 106 of the Civil Code on the transfer of mortgaged property by the mortgagor during the mortgage period do not directly apply to the circumstances in which the mortgage security liability has actually occurred.。

Secondly, the legal consequences of the transfer of mortgaged property during the mortgage period stipulated in Article 106 of the Civil Code include two kinds: one is that the mortgage right continues to exist on the mortgaged property; the other is that the transfer behavior damages the mortgage right and deposits the transfer price or pays off the debt in advance, but does not include the normative purpose of paying off the due debt. It can be seen that the law does not contain the normative purpose that the mortgagee can still transfer the mortgaged property after the principal debt expires. In view of the foregoing, the author believes that the provisions of Article 106 of the Civil Code are not sufficient to fill the legal loophole of "the mortgagee does not exercise the mortgage when the mortgage liability arises at maturity of the principal debt to the detriment of the mortgagee.

As mentioned above, in the relationship of pledge guarantee and lien guarantee, when the guarantee liability arises at the end of the performance of the main debt, the pledgee and the debtor may, in accordance with the provisions of articles 437 and 554 of the Civil Code, respectively, promote the realization of the security right and the settlement of the debt, in order to preserve the legal interest and value of the secured property. However, articles 437 and 554 of the Civil Code only address the issue of the guarantor's legal interest protection and preservation of the value of the encumbered property, which is inadequate. In the relationship of creditor's rights and debts with security interests, the main contract is the legal relationship of the main creditor's rights and debts, and the guarantee contract is from the legal relationship of creditor's rights and debts, and from the contract. The performance of the security contract will affect the rights and obligations of the parties under the main contract. In addition, in the case of the same main contract, there may be a guarantee other than a security interest, and the exercise status and time of the security interest may also affect the ultimate security liability of the guarantor. According to the principle of contract relativity, the debtor's debt is limited to the creditor's rights (including security rights), and the exercise of rights should follow the principles of fairness and good faith. (34) The exercise of security rights is no exception, otherwise it may harm the debtor and The interests of the guarantor, the debtor and the guarantor, in order to protect these interests from damage, should be based on the rights of the secured real right holder under the law. The Civil Code provides for other civil rights and interests to the extent that they are "prescribed by law" (35). The Civil Code does not provide for the debtor and guarantor to enjoy the relevant rights of the security interest, which constitutes a legal defect or even a loophole in logic and jurisprudence.

The principle of fairness and good faith should be implemented not only in the field of civil justice, but also in the field of civil legislation. When the act of the security right holder exercising the right violates the principle of fairness and the principle of good faith will harm the interests of the debtor and the guarantor, the legislator should set up the debtor and the guarantor to enjoy the corresponding rights to check and balance the behavior of the security right holder on the basis of the principle of fairness, so as to fairly regulate the rights and obligations of the creditor, the debtor and the guarantor. In other words, the obligor should also enjoy rights, and the essence of giving rights is to require the right holder to exercise his rights in good faith and fairly in order to ensure that his own interests are not harmed.

As Pound said, the task, purpose and value of law is to protect and develop the civilization created by our society. This civilization is the starting point of our social science. The continuous and perfect development of human power is the maximum control of human beings on the external or material nature and on the internal or human nature that human beings can control at present, in this process of control, it is actually protecting the existing civilization and promoting the development of civilization through the rule of law, specifically the satisfaction of group interests when people are social animals, without ignoring the independence and desire of individuals in this society. In short, the task of law is not to create interests, but to protect existing interests or civilizations, actively or passively reconcile the competition and interests between various subjects, and promote a better state of civilization.（36）From Pound's point of view, the author believes that: 1. the rights or interests that have not been stipulated by law do not exist, and the fact that the legal system of security does not stipulate the rights of the debtor and guarantor to the security interest holder does not mean that such rights or interests do not exist; 2. the legal system of security should legislate actively or passively to reconcile the interests and conflicts between the debtor, guarantor and the security interest holder.

When the actions of the security interest holder may harm the interests of the debtor or guarantor, the law should provide that the debtor or guarantor has the right to avoid or resist damage in order to restrict the dishonest and unfair behavior of the security interest holder. In the overall legal relationship between the main contract and the mortgage contract, the guarantee contract and so on, the law should improve the mechanism so that the mutual interests of the parties are treated fairly. Otherwise, as Carl. The failure of the debtor, the guarantor, to provide for the rights of the security interest "is an unsatisfactory incompleteness within a whole." （37）

As for the situation where the security right holder may be unfair and dishonest to the detriment of the interests of the debtor and guarantor, and what rights the debtor and guarantor should enjoy, it will be described in detail below.

(I) the security right holder does not exercise the security right provided by the third party in time will harm the interests of the debtor, the main debtor's right to realize the secured property should be standardized and perfected.

As mentioned above, when the debtor is insolvent and the right holder of the security interest does not exercise the power in time to settle the debt, the principal debtor's debt burden and the consequences of default will be increased. Especially in the case of liquidated damages, compensation for breach of contract and other standards higher than the normal interest standard of the original contract, and the value of the secured property is sufficient, the creditor (the security interest holder) from the "economic man rational" (I. e. self-interest) nature, will be likely to deliberately delay the payment of the claim, to obtain more benefits. This is dishonest and unfair to the debtor. In the case where the principal debtor is the same as the guarantor in rem, the principal debtor may control the amount of liability for the principal debt in accordance with articles 437 and 454 of the Civil Code, respectively, to avoid the spread of unfair consequences (38). However, when the principal debtor is not the guarantor, and a third party acts as the real right guarantor, and the scope of guarantee liability includes the default liability of the principal debt, liquidated damages, cost of realizing the creditor's rights, etc., if the guarantor fails to exercise the security right in time, the priority compensation amount of the realization of the real right will be increased with time delay, and the guarantor will eventually recover the debt liability amount from the debtor. Therefore, the principal debtor is the ultimate victim of the increase in the amount of debt liability caused by the security right holder's failure to exercise the security right in a timely manner, but the guarantee system of the Civil Code does not provide that the principal debtor has the right to request the security right holder to exercise its power in a timely manner or to apply to the court for auction or sale of the secured property, which is suspected of being incomplete in reason and logic.

On the other hand, the law does not protect the rights of the sleeper is to reason, in the case of default of the principal debtor, the creditor (security interest) should promptly exercise the claim, including the main claim and the security interest. When the security liability arises at the end of the term of the principal obligation, the principal debtor has constituted a default, such default has infringed the interests of the creditor, and the creditor's enjoyment and exercise of the security interest should be regarded as a measure to remedy the debtor's default loss. If the security right holder intentionally fails to exercise the security right, and the loss is expanded, the principal debtor shall not be required to bear it. Article 951 of the Civil Code already embodies these legal rules and standards: "After a party defaults, the other party shall take appropriate measures to prevent the expansion of the loss; if the loss is expanded due to the failure to take appropriate measures, it shall not claim compensation for the expanded loss. The reasonable expenses incurred by the party in preventing the expansion of the loss shall be borne by the breaching party."

According to the principles of fairness, good faith and the legislative implication of Article 951 of the Civil Code, the author believes that in the contract bundle consisting of the main contract and the real right security contract, if the security right holder fails to exercise the security right in time and causes the loss of breach of contract and the expansion of liability under the main contract, the principal debtor should not be required to compensate for the expanded part of the liability. In order to further actively prevent the expansion of such losses and aggravate the disputes and contradictions between the two parties, it is necessary and possible for the law to give the principal debtor the right to require creditors to realize the security right as soon as possible or the right to request the court to auction or sell the secured property in the case of a third party providing security in rem. If the debtor applies to the court to auction and sell the secured property, it is suspected that it is offside, after all, the debtor is not the guarantor of the property (owner) and does not enjoy the right of disposition based on ownership. It would then be reasonable for the debtor to request the security interest holder to realize the encumbered property as soon as possible and not to bear the additional burden of the debt resulting from the delayed realization of the encumbered property.

(II) the security right holder does not exercise the security right in time will harm the interests of the guarantor, the guarantor should be standardized and perfected to enjoy the right to realize the secured property.

It is more common for the same principal obligation to have both a security interest and a guarantee. When the right holder of the security right does not exercise the security right in time, the infringement is not only the guarantor of the right, the principal debtor, but also the guarantor. In cases where the amount of the guarantor's guarantee liability is affected by the time of realization and the value of the secured property, the guarantor shall be deemed to have a reasonable expectation of interest in the preservation of the value of the secured property and the timely exercise of the right, in which case the guarantor shall be provided for the right to reduce the guarantee liability and request the timely realization of the secured property.

Article 392 of the Civil Code stipulates: "If the secured creditor's right has both the security of the property and the security of someone, the creditor shall realize the creditor's right in accordance with the agreement if the debtor fails to perform the due debt or the realization of the security right agreed by the parties; If there is no agreement or the agreement is unclear, and the debtor provides the security of the property, the creditor shall first realize the creditor's right on the security of the property. Where a third party provides security, the creditor may realize the claim on the security of the property or request the guarantor to assume the responsibility of the guarantee. After the third party providing the guarantee assumes the liability for the guarantee, it has the right to recover from the debtor." On this basis, whether the amount of the guarantor's guarantee liability is affected by changes in the value of the encumbered property and the timely exercise of the security right can be divided into the following situations:

If the main contract and the relevant guarantee contract (including the guarantee contract) stipulate that the guarantor has priority over the guarantor in rem to assume the guarantee liability, the impairment of the value of the secured property and the timely realization of the guarantee do not affect the size of the guarantor's expected guarantee liability. In this case, the guarantor shall not have a reasonable interest in the preservation of the value of the secured property and the timely realization of the payment. Conversely, if the main contract and the related security contract (including the guarantee contract) agree that the security in rem takes precedence over the guarantor's liability for security, the impairment of the value of the secured property and the timely realization of the security will clearly affect the size of the guarantor's expected liability for security. In this case, the delay in the exercise of the security interest by the security interest will cause the amount of the debt to expand and even eventually exceed the realization value of the encumbered property, resulting in the guarantor assuming a guarantee liability that would not otherwise be required. Therefore, the guarantor shall have a reasonable interest in the preservation of the value of the secured property and the timely realization of the payment.

If there is no agreement or the agreement is not clear in the order of the security of the goods and the guarantee of the person, and the debtor provides the security of the goods itself, the law provides that the creditor shall first realize the claim on the security of the goods. In such a case, the impairment of the value of the encumbered property and its timely realization would clearly affect the size of the guarantor's expected liability, and the guarantor should enjoy the legal benefit of the preservation of the value of the encumbered property and the timely realization of the payment.

When the security of the object and the security of the person exist at the same time and there is no order to bear the security liability, the classic legislative example is to provide that the security of the object takes precedence over the security of the person to bear the liability. The legislative example makes it clear in Article 28 of the Guarantee Law: "If the same claim has both the guarantee and the security of the object, the guarantor shall bear the guarantee liability for the claim other than the security of the property. If the creditor waives the security of the property, the guarantor is relieved of the liability of the guarantee to the extent that the creditor waives the right.". However, the 176th revision of the property law is as follows: "if the secured creditor's right has both the security of the property and the security of someone, if the debtor fails to perform the due debt or the situation of realizing the security right agreed by the parties occurs, the creditor shall realize the creditor's right in accordance with the agreement; if there is no agreement or the agreement is not clear, and the debtor provides the security of the property, the creditor shall first realize the creditor's claim on the security; where a third party provides security in ream, the creditor may realize the claim in respect of the security in ream, or may require the guarantor to assume the responsibility for the guarantee. After the third party providing the guarantee assumes the responsibility for the guarantee, it has the right to recover from the debtor.", This amendment was inherited by Article 392 of the Civil Code.（39）

In the case where the order of the security of the goods and the guarantee of the person is not agreed or the agreement is not clear, and the third party provides the security of the goods, the law provides that the creditor may realize the claim on the security of the goods, or may request the guarantor to assume the responsibility of the guarantee. In this case, the timeliness, difficulty and amount of the realization of the value of the secured property may affect whether the guarantor is ultimately liable for the guarantee and the amount of the guarantee. The provisions of Article 392 of the Civil Code seem to be more conducive to the protection of the interests of creditors. However, this system is designed to provide the institutional soil for the guarantor and the creditor (the security right holder) to violate the principles of good faith and fairness, and even maliciously collude to realize the full value of the secured property, but only to pursue the guarantor's security liability. Especially when the creditor has other creditor's rights (including main creditor's right and guarantee creditor's right) to the real right guarantor, if the guarantor in the current debt relationship has strong solvency, the creditor will require the guarantor in the current debt relationship to give priority to the security liability, and the secured property will continue to be in the security registration state, so as to ensure the creditor's ability to realize other creditor's rights to the real right guarantor. However, when the guarantor provides guarantee, it is often based on the premise that the current debt relationship has already arranged the property guarantee. Based on the perspective of fairness and integrity, it is difficult for the guarantor to predict that the creditor will make the above-mentioned comprehensive allocation of various creditor's rights protection and realization path in the future, which will lead to the guarantor's guarantee responsibility for the current debt becoming larger, and the scope of responsibility is different from the guarantor's inner intention and reasonable expectation when signing of the guarantee contract, what's more, other debts are likely to be new after the creation of the current debt and security relationship. Similar to the situation in which a creditor increases the amount of liability of a guarantor in a specific creditor relationship in order to realize the amount of multiple claims in a comprehensive manner, the author has been exposed to several cases in judicial practice. Therefore, the author thinks that it is not so much that Article 392 of the Civil Code specifies that the order of security for real rights and guarantees is not agreed upon or the order of responsibility when the agreement is not clear, it is better to say that Article 392 of the Civil Code sets up a trap in which creditors can calculate the amount of responsibility of the guarantor to exceed the expected amount after the guarantee contract is signed. The actual creation of this trap is often the result of consensus or acquiescence between the creditor and the guarantor in rem, and the guarantor is often powerless.

Such "framing" acts of creditors and real right guarantors obviously belong to the failure of creditors to distribute fairly and reasonably and determine the guarantee liability of real right guarantors and guarantors, which does not conform to the principle of fairness and reasonableness, and violates the provisions of Article 6 of the Civil Code: "Civil subjects engaged in civil activities shall follow the principle of fairness and reasonably determine the rights and obligations of all parties.". It can be seen that in the case of the security of the goods and the guarantee of the person's guarantee order is not agreed or the agreement is not clear, and the third party provides the security of the goods, the guarantor shall enjoy the legal benefits of the preservation of the value of the secured property and the timely realization of the compensation.

The Civil Code does not provide for the rights of the principal debtor and guarantor to the value of the secured property and the timeliness of realization, because it does not see through and understand that the preservation of the value of the secured property and the timely realization of the payment are also related to the interests of the debtor and the guarantor, or the legislator has not had the aforementioned case experience or experience in judicial practice. Considering that the principal debtor and the guarantor are not the direct parties to the security interest relationship and have no right to exercise the right to dispose of the secured property, it seems that the claims of the principal debtor and the guarantor in the timely realization and value preservation of the secured property can be claimed through the contract breach derogation rule (40) stipulated in Article 951 of the Civil Code and the fairness principle stipulated in Article 6 of the Civil Code. But this idea of the application of the law appears broad and far-fetched. Therefore, the Civil Code does not provide for the principal debtor, guarantor's right to claim legal interest protection for the preservation of the value of the secured property and the realization of compensation, and even if it is not regarded as a legal loophole, it should be regarded as a legislative gap and further improved.

6. the current "Civil Code" judicial interpretation of the gap to fill the gap and the gap to fill the proposal.

"Law is not a static matter, it needs to adjust its normative field and normative degree in response to changes in the world has reached a consensus in jurisprudence." (41) the normative field and degree of law should not only be adjusted with the changes of world affairs and social environment, but also take fairness and justice as the goal, and ensure the legitimacy of the law. When it is found that there are legal loopholes or defects in the current legal provisions, resulting in the lack of legitimacy and fairness, the legal provisions as empirical law should be revised and improved. Its legal logic lies in that the legitimacy basis of "positive law" itself lies in higher "right law" or "justice". In this sense, "legitimacy" is higher than "positive law" in logic level. In everyday language, we have the so-called "legal but unreasonable" statement. The legitimacy and legality of the law are mutually reinforcing. (42) The author believes that the several issues discussed in this article almost all involve "the law is so stipulated" or "the law is not stipulated", which is legal; but as the reasons detailed in this article, "the law is so stipulated" Or "the law is not stipulated" is unreasonable and unjust, and it is necessary to amend and perfect the legislation.

However, in view of the inherent stability principle and conservative character of the law, the law cannot and should not be changed. For this reason, the judicial interpretation of the highest judicial organ should be shipped out. The function of judicial interpretation is not only to better implement and enforce the law in trial practice, but also to clarify the unclear and undetailed aspects of the law, and to resolve the application of the law. The existing legal conflicts, especially the function of filling legal loopholes and legal defects in written legislation. The author thinks that the legal loopholes or defects of the guarantee system of the Civil Code described in this paper should be detected, discovered, filled and perfected, at least as controversial and discussed as this article. Such legal loopholes or legal defects may be filled in the future judicial practice through case-by-case judicial opinions, or hope that new judicial interpretations will be issued later to fill and improve them, nor do they rule out the possibility of being amended and improved in future legislation. Prior to this, the author, based on the views and rationals of this article, describes the recommendations for filling the relevant legal loopholes or legal deficiencies as follows:

(I)With respect to the loopholes in the preservation of the value of the secured property of the lien guarantee, the legislative provisions or judicial interpretations clearly stipulate that if the debtor's behavior may damage or significantly reduce the value of the lien property, which is sufficient to endanger the rights of the lien holder, the lien holder has the right to request the debtor to stop the harmful behavior. If the debtor does not stop the harmful behavior, the lien holder may auction or sell the lien property, and sell the lien property, and pay off the debts in advance.

(II)Regarding the preservation of the security value of the pledged property, it is suggested to amend or make it clear in judicial interpretation: if the pledged property may be damaged or its value significantly reduced due to the pledgor's reasons, which is enough to endanger the rights of the pledgor, the pledgor has the right to request the pledgor to provide corresponding security; if the pledgor does not provide it, the pledgor may auction or sell the pledged property, and agree with the pledgee to pay off the debt or deposit the proceeds of the auction or sale in advance.

(III) If the mortgagee fails to exercise the mortgage right in time, the legislative provisions or judicial interpretations are clear: the mortgagee may request the mortgagee to exercise the mortgage right in time after the expiration of the debt performance period; If the mortgagee does not exercise, the mortgagee may transfer the mortgaged property or request the people's court to auction or sell the mortgaged property, and repay the mortgagee with priority in the proceeds from the transfer of the mortgaged property. If the mortgagor requests the mortgagee to exercise the mortgage right in a timely manner, the mortgagee shall be liable for compensation if the mortgagee is negligent in exercising the right and causes damage to the mortgagee.

(IV)If the principal debtor fails to exercise the security right in time for the security right holder, the legislative provisions or judicial interpretation make it clear that after the expiration of the period of performance of the debt, the debtor may request the security right holder to exercise the security right in a timely manner; if the security right holder does not exercise it, the debtor may request the people's court to auction or sell the secured property. The debtor requests the security right holder to exercise the security right in a timely manner, and the security right holder has no right to claim the increased debt burden of the debtor as a result of the security right holder's delay in exercising the right.

(V)If the guarantor fails to exercise the security interest in time for the expiration of the term of the security right, the legislative provisions or judicial interpretations are clear: if the same debt has both the security in rem and the guarantee, and there is no agreement that the guarantee takes precedence over the security in rem to assume the security liability, the guarantor may request the security right to exercise the security right in time after the expiration of the performance period of the debt, the security right holder has no right to claim because the security right holder is negligent in exercising the right to increase the debtor's guarantee liability.

(VI) With respect to the legal interest of the guarantor to preserve the value of the secured property, the legislative provisions or judicial interpretations are clear: if the same debt has both security in rem and security, and there is no agreement that the security takes precedence over the security in rem to assume the security liability, the act of the guarantor or the security right holder may damage the secured property or significantly reduce its value, which is sufficient to endanger the realization of the security right, the guarantor has the right to request to stop the harm, the guarantor may, in respect of the increase in the amount of the guarantee liability resulting from the decrease in the value of the secured property, recover from the guarantor in rem for the harmful act, or exonerate the creditor for the harmful act.

The author realizes that the social and economic fields are complicated, and it is difficult to adjust and apply the law in all aspects. The phenomenon of system design gaps and dead corners is understandable, such as the fact that the sun cannot shine 100% on every corner of the world. Legal provisions and systems sometimes derive from normative judgments, which can be regulated to determine right and wrong, and sometimes from value judgments that are only related to differences in values. Although civil law is based on fairness and integrity, it is not easy to achieve complete and universal fairness and justice. Universal fairness and justice may only be the goal pursued tirelessly by legislation and justice, and it is a kind of response but not reality. In other words, under the influence of the values of exclusive or preferential interests of creditors and security rights holders, the interests of the guarantor, debtor and guarantor in rem are irrelevant, and even the damage they suffer is "deserved" and not worth protecting. As a result, attempts to fill the relevant legal loopholes and institutional deficiencies described in this article to a fair, reasonable and efficient state can be said to be difficult and long. However, the original intention of legislation and justice must be to maintain and determine fairness and justice. Under the inspiration of this original intention, bold exploration and careful verification are the obstacles of legal people. In this article, the author questioned the system defects and loopholes to fill the proposal, but also out of the legal person's original intention and mission, only to have the merit of throwing bricks to attract jade, or reactive also from the bitter. On the other hand, the path of legal study should be to be reflective and critical, to explore the shortcomings, loopholes and defects of legal problems from a pluralistic or unique perspective and a methodology of negation. Even if the problems do not exist or are not important after repeated thinking, they can also improve the ability of legal study. Thus, the author's questioning in this article is motivated by a well-intentioned reflection.

References:

(1) According to Cora, the entity right is the use of the entity of the property, the cornerstone of the property right, represented by ownership. Vgl.J.Kohler,Substanzrecht und Wertrecht,AcP,91.Bd.,H.2(1901),SS.155-208.

(2)[De] Bauer/Stirner: German Property Law (Part I), translated by Zhang Shuanggen, Law Press, 2004, p. 43.

(3) Article 186 of the the People's Republic of China Property Law: Before the expiration of the period of performance of the debt, the mortgagee shall not agree with the mortgagor that the mortgaged property shall be owned by the creditor when the debtor fails to perform the debt due.

(4) See Zheng Yubo: "Property Rights in Civil Law", revised by Huang Zongle, Sanmin Book Company, 2012, p. 327; Wang Zejian: "Property Rights in Civil Law", Peking University Press, 2009, p. 361; Liang Huixing and Chen Huabin: Property Law, Law Press, 2010, p. 289.

(5) Article 433 of the the People's Republic of China Civil Code "If the pledged property may be damaged or its value significantly reduced due to reasons not attributable to the pledgee, which are sufficient to endanger the rights of the pledgee, the pledgee shall have the right to request the pledgee to provide corresponding security; If the pledgee does not provide it, the pledgee may auction or sell the pledged property, and agree with the pledgee to pay off the debt or deposit the proceeds of the auction or sale in advance."

(6) Wang Xuewei: On the Right to Increase the Guarantee Request, Shanghai Law Research Collection (Volume 11, 2020, Volume 35), p. 46.

(7) Article 437 of the Civil Code of the People's Republic of China: "The pledgee may request the pledgee to exercise the pledge in a timely manner after the expiration of the period for performance of the debt; if the pledgee does not exercise it, the pledgee may request the people's court to auction and sell the pledged property." Article 454 "The debtor may request the lien holder to exercise the lien after the expiration of the period for the performance of the debt; if the lien holder does not exercise it, the debtor may request the people's court to auction and sell the lien property."

(8)[English] Bentham, Introduction to Principles of Morality and Legislation, translated by Shi Yinhong, Commercial Press, 2000 edition, p. 269.

(9)[English] Bentham, Introduction to Principles of Morality and Legislation, translated by Shi Yinhong, Commercial Press, 2000 edition, p. 269, note 1.

(10) Zhang Song, Zhang Yue: The View of Rights from the Perspective of Liberalism and Utilitarianism, The Economist 2020 (01) 51-52.

(11)[English] Jeremy Bentham: "On Government Film", translated by Shen Shup, Commercial Press, 2015 edition, p. 228.

(12)[English] Jeremy Bentham, "Introduction to Principles of Morality and Legislation", translated by Shi Yinhong, Commercial Press, 2016 edition, p. 269 notes.

(13)[English] Jeremy Bentham, "Introduction to Principles of Morality and Legislation", translated by Shi Yinhong, Commercial Press, 2016 edition, p. 269 notes.

(14)[US] Richard Lackman: "State and Power", translated by Li Qing and others, Shanghai Century Publishing Group, 2013 edition, preface. Weber also said that "in the very general sense of power, that is, in the possibility of imposing one's own will on the behavior of others, domination may appear in various and very different forms". [Germany] Max Weber: "Economy and Society" (Volume II), translated by Lin Rongyuan, Commercial Press, 1997 edition, p. 264.

(15)[Japan] Yukichi Omi: Guaranteed Property Law, translated by Zhu Ya et al., Law Press, 2001, p. 95, note 1.

(16) Xie Quan: "Civil Law on Property Rights", China University of Political Science and Law Press, 2011 edition, p. 721.

(17) Wei Dagu, "The right of the mortgagee to exclude the right to possess the mortgaged property", in Su Yongqin, editor-in-chief: "Analysis of the problem of real rights in civil law", Tsinghua University Press, 2004 edition, p. 147.

(18)[de] Karl. Ngishi, Introduction to Legal Thinking, translated by Zheng Yongliu, Law Press, 2014, p. 168.

(19)[Germany] Zipelius: Methodology of Law, translated by Jin Zhenbao, Law Press, 2009, p. 92.

(20)[Germany] Zipelius: "Methodology of Law", translated by Jin Zhenbao, Law Publishing House, 2009, p. 93.

(21)[Germany] Zipelius: "Methodology of Law", translated by Jin Zhenbao, Law Press, 2009, p. 93.

(22)[Germany] Zipelius: "Methodology of Law", translated by Jin Zhenbao, Law Press, 2009, p. 94.

(23)[Germany] Zipelius: "Methodology of Law", translated by Jin Zhenbao, Law Press, 2009, p. 94.

(24)[Germany] Zipelius: "Methodology of Law", translated by Jin Zhenbao, Law Press, 2009, p. 94.

(25)[de] Karl. Ngishi, Introduction to Legal Thinking, translated by Zheng Yongliu, Law Press, 2014, p. 168.

(26)[Japan] Yukichi Omi: Guaranteed Property Law, translated by Zhu Ya et al., Law Press, 2001, p. 7.

(27)[Germany] Zipelius: "Methodology of Law", translated by Jin Zhenbao, Law Press, 2009, p. 94.

(28)[de] Karl. Larenz, Methods of Interpretation of Legal Acts-On the Theory of Meaning, translated by Fan Xuefei and Wu Xunxiang, Law Press, 2018, p. 52.

(29)[de] Carl. Larenz, Methods of Interpretation of Legal Acts-On the Theory of Meaning, translated by Fan Xuefei and Wu Xunxiang, Law Press, 2018, p. 53.

(30)[de] Karl. Larenz, Methods of Interpretation of Legal Acts-On the Theory of Meaning, translated by Fan Xuefei and Wu Xunxiang, Law Press, 2018, p. 59.

(31)[de] Carl. Larenz, Methods of Interpretation of Legal Acts-On the Theory of Meaning, translated by Fan Xuefei and Wu Xunxiang, Law Press, 2018, p. 57.

(32) Xi Zhiguo, "The Reconstruction of the Land Rights System in the Compilation of the Civil Code-The Logical Unfolding of the Theory of" Three Powers "", in Jinan Journal (Philosophy and Social Sciences Edition), No. 6, 2019.

(33)[Germany] Zipelius: "Methodology of Law", translated by Jin Zhenbao, Law Press, 2009, p. 94.

(34) Article 6 of the Civil Code of the People's Republic of China states that "when engaging in civil activities, civil subjects shall follow the principle of fairness and reasonably determine the rights and obligations of all parties"; Article 7 stipulates that "when engaging in civil activities, civil subjects shall be honest and abide by their commitments".

(35) Article 126 of the Civil Code of the People's Republic of China "Civil subjects shall enjoy the civil rights and interests prescribed by law".

(36) See [U. S.] Roscoe Pound, Social Control through Law, translated by Shen Zongling, Commercial Press, 2010.

(37)[de] Carl. Ngishi, Introduction to Legal Thinking, translated by Zheng Yongliu, Law Press, 2014, p. 168.

(38) Article 437 of the Civil Code of the People's Republic of China "The pledgee may request the pledgee to exercise the pledge in a timely manner after the expiration of the debt performance period; if the pledgee does not exercise it, the pledgee may request the people's court to auction or sell the pledged property. The pledgee requests the pledgee to exercise the pledge in a timely manner." Article 454 "The debtor may request the lien holder to exercise the lien after the expiration of the period for the performance of the debt; if the lien holder does not exercise it, the debtor may request the people's court to auction and sell the lien property."

(39) Article 392 of the Civil Code of the People's Republic of China "If the secured creditor's rights are both secured in real and secured by others, the creditor shall realize the creditor's rights in accordance with the agreement if the debtor fails to perform the due debt or the realization of the security interest agreed by the parties; If there is no agreement or the agreement is unclear, and the debtor provides security in real estate, the creditor shall first realize the claim in respect of the security in real estate; where a third party provides security in rem, the creditor may realize the claim in respect of the security in rem, or may request the guarantor to assume the responsibility for the guarantee. After the third party providing the guarantee assumes the liability for the guarantee, it has the right to recover from the debtor."

(40) Article 951 of the the People's Republic of China Civil Code: "After a party breaches a contract, the other party shall take appropriate measures to prevent the expansion of the loss; if the loss is expanded as a result of the failure to take appropriate measures, it shall not claim compensation for the expanded loss. The reasonable expenses incurred by the party to prevent the expansion of the loss shall be borne by the breaching party."

(41) Qin Qianhong: "The Constitution Says the Constitution", China University of Political Science and Law Press, 1st Edition, May 2017, p. 101.

(42) Qin Qianhong: "Xian Says Xian Dao", China University of Political Science and Law Press, 1st Edition, May 2017, p. 113.