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实现担保物权的特别程序作为担保物权人实现权益的非诉讼途径,是我国在担保物权立法制度上的重大转变和突破。然而,由于特别程序尚在探索阶段,实施细则并不完善,因而在司法实务中若出现被申请人下落不明无法直接送达通知其到场当面审查的情形时,法院会以申请人下落不明为由驳回申请,这种一刀切的处理方式使得被申请人以此为途径恶意拖延逃避义务,最终可能导致实现担保物权的特别程序流于形式。基于此,本文将从实现担保物权的立法初衷、司法实践、并结合实现状况,论证实现担保物权的特别程序应当适用于公告送达。
As a non-litigation way to realize the rights and interests of the real right owner, the special procedure of realizing the real right of guaranty is a great change and breakthrough of our country in legislation system of security interest. However, since the special procedure is still under exploration and the implementation rules are not perfect, if the respondent is found in the judicial practice and can not be directly served to inform him of the face-to-face examination, the court will, based on the applicant’s whereabouts, The dismissal of the application resulted in the one-size-fits-all treatment that caused the respondent to maliciously delay the evasion obligation and eventually lead to the special form of the special procedure for realizing the security interest. Based on this, this article will be from the realization of the original intention of the legislation of security interests, judicial practice, combined with the status quo, arguing that the realization of the special procedures for security interests should be applied to the notice served.