Study On Lien In Civil Law

Lien is originated from the Roman law and inherited byother countries in their civil laws all over the world. Lienis stipulated in many civil and commercial codes in civil lawcountries such as the French civil code, Germany civil codeand Japan civil code. Many Chinese prevailing laws containsuch regulations, like the General Rule of Civil Law, Sea andCommercial Law, Corporate Law, Guarantee Law, Civil AviationLaw, but these stipulations are not integrated. A uniform andgeneral theory about lien is still not in shape. With theimprovement of Chinese legislation and needs of socialpractice, an in-depth and systematic study on civil lienbecomes more and more important. Referring to current civil law in effect in china, usinglegislation in other civil countries as examples, thisdissertation begins from the basic theory of civil law andprobes into the nature of lien by analyzing basic types ofcivil rights. Lien is the manifestation of effectiveness ofbasic civil rights rather than independent civil rights. Thetypes of rights with the effect of lien mainlyexist in the Property Law and the Law of Obligation. Based onanalyzing the specific content of lien with the effect ofcreditor's right and property man's right, it discovers theessential characteristic of lien, i.e. priority is the coreand lien should be set up by law. The aim of legislation on lien is to interrupt theprincipal of equality of creditor's rights, to giveparticular creditor the priority of reimbursement to othercreditor to securing him who has special basis. The socialbasis of establishing lien is the requirement of certainsocial policies, or the requirement of public and nationalinterest, or the need of protecting survival right of debtor.Hence, lien is an important legal institution in civil law.With the development of modern legal system, there is a trendof obligation right to property right, which means that thelaw endows some creditor's right with the effect of propertyright, making it against the third person under specificcircumstances, thus realizing the essential equality amongcreditors. On the other side, this trend shows an expansionof the effect of creditor's right. So the legislation of lienshould be strictly legal. After introducing major types oflien in Chinese civil law theories and content and legalcharacteristic of each type in details, we understand thattypes of lien and the requirements to execute lien should bespecified in law, which is not only the need to protect theperson with priority by law, but also the need to balancewhole social interests. In the end, conflicts and coordination betweensome different types of lien are discussed. When twoor more liens exist on the same object, conflict mayarise due to different interest in different liens. Accordingto the general legal ideologies and Chinese legalstipulations, by detailed analysis of particular cases, thenature of these conflicts is studied and some reasonablecoordinate project is set forth to perfect the lien system.