Legislative Consideration On Establishing Chinese Unified Privilege Mechanism

The privilege mechanism had originated from the ancient Roam Law. In Roam the law have set up the privilege mechanism that abolishs "creditor's rights are equal", protectes the weak and safeguardes essence justice. The privilege mechanism is received by a lot of civil laws of countries and regions of later age. In such countries as France, Japan, etc. the privilege mechanism has already become a riper system of legal real right of pledge, giving play to its special function. But for a long time, our civil law comparatively ignores priority in legislating. There is no intact priority system yet in the civil law except the scattered regulation of some concrete priority; in theory, the system research about priority has just started, and a lot of question disputes are relatively great. But with the development of real right of pledge, the traditional guarantee way has already presented several insufficiently, and and it has not been to strongly guarantee to the special creditor. With perfection on legislating of the real right, the further investigation of priority have already become essential. In view of this, specially on the basis of legislates investigating in various countries' priority, I have analysed and researched in paper such several important problems as the concept and nature to the priority system, etc, and have analysed to domestic relevant disputes. Furthermore, I have put forward to the preliminary suggestion on establishment of the priority system in unison in national law and expect to offer some reference for the priority system of perfecting our country. This paper is divided into three parts, including introduction, body and conclusion, stating it as follows now: Introduction: this paper originally explains the formulation meaning of the priority system and practice on every national law partly, analyses the realistic basis set up at present in our country of priority, and pointes out the writing intention of this text on the basis of stating our country's priority legislation current situation. The body is divided into several following parts again: The first part: priority summary. The meaning of priority has different versions in theory at present, I summarize the views of the academia as four kinds and make analysis on them, and then reveal the meaning of priority from them: Priority is the right that is stipulatesd directly by the law. On the same property when several compatible rights conflict each other, in order to protect the interests of the special creditor, it have priority right that repay to go on property of debtor according to order of legal provisions. And to in practice easy to distinguish and analyses with priority concept preferential right to indemnification, legal hypothec, lien, and priority obscured to happen. About the nature of priority, I proceed with nature of the real right of pledge, analyze that priority have getting legal, priority etc. and draw the conclusion that it is a legal real right of pledge. The snake of any legal system has its objective foundation and legal value to establish a capital, and the legislative foundation of priority is to pertece the week, ensure human rights and meet the need of social policy on the basis of public interests, and have justice value of efficiency. Regarding history as the clue, I have investigated priority origin and continuing and receiving to priority system of civil law of later age, and expect to understand to the development of priority to some extent. The second part: comparison of the main legal system of foreign priority. With the method of comparison, consulting the legislation of such relevant countries as France, Japan, etc. this part carries on detailed comparison on kind, order of priority and the competing of priority and other real right of pledge of priority jointly, analyses similarities and differences and appraises its rational to or not. It is to expect to the legislate enlightenment to some extent to our country. The third part: comparison and evaluation on the domestic theory of priority. This part eval...