Principio de proporcionalidad y garantías hipotecarias
The research analyses the role of the principle of proportionality in the regulation of mortgage security, in addition also suggesting practical solutions for the clarification of the more general problem of the relationship between debt and securities. The Author explains the axiological basis of t...
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| Main Author: | |
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| Format: | Article |
| Language: | Spanish |
| Published: |
2018
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| Subjects: | |
| Online Access: | https://dialnet.unirioja.es/servlet/oaiart?codigo=6263401 |
| Source: | Revista Boliviana de Derecho, ISSN 2070-8157, Nº. 25, 2018, pags. 306-319 |
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| Summary: |
The research analyses the role of the principle of proportionality in the regulation of mortgage
security, in addition also suggesting practical solutions for the clarification of the more general problem of
the relationship between debt and securities. The Author explains the axiological basis of the principle that
manifest in the necessity of balancing the interest of the debtor to not incur a sacrifice “beyond that which is
strictly necessary” and, on the other hand, that of the creditor to possess adequate guarantees. The principle,
before assuming a constitutional status, orientated legislators in 1942 to define the civil code rules as regards
the registration and reduction of mortgages wherever a balance is contemplated both in the phase of the setting
up of securities, with limitations regarding their reduction, as well as in the executive phase with arrangements
relative to «improper reductions». Its value as a general principle makes it applicable not only as a hermeneutical
instrument but also as regards its perceptive capacity, such as the maximization of its underlying values, making
possible remedies for the reduction of equity in cases of the voluntary concession of securities. |
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