On The Right Of Priority

The right of priority originates from the right of legal mortgage in Rome law. In order to be beneficial to realize the interests of the state and to meet the objects of fairness and justice, every state or region in the world for the consideration of policy grants protection to special creditors by way of stipulating the system of priority or the forms of other guarantee. The legislation in China has no uniform stipulations on priority but it is stipulated in special laws casually, while the system of priority has been widely used in judicial practice. The Property Law in China has been listed in the plan of legislations. There is controversy on whether the system of priority should be abolished or not between the level of legislation and the theoretical field. However, people seldom study on it from the point of circumstance of legislation and judicial practice. The paper has done historical analyze on the origin of the system of priority and has a comparative study on the concept of priority and legislation structure. It has established that the Property Law in China should be uniform and put up the contents and means of priority by studying on the social substantial circumstances and judicial practice case by case. The paper is divided into four chapters. The first chapter is the outline of priority, stating the concept, contents, classification and legal status of priority, introducing its origin of legislation and modes of legislation in other states by comparative and historical study and suggesting their instructive meaning to domestic legislation, it also puts up that the system of priority should be stipulated in the legislation of China. The second chapter studies on the necessity on establishing the system of priority by introducing the current circumstances on legislation and the issues in judicial practice by the means of case study, it analyzes its foundation of legislation and suggests that the uniform system of priority should be established in China. The third chapter is on the main contents of priority in our future Property Law. It introduces the system of priority in the draft on Property Law in China by professor Wang LiMing. Then it suggests the main contents of priority in our future Property Law which should consist of general priority and special priority. The classification and order to pay off on public priority should be stipulated in the Property Law under the principle of legal property as public priority is one of priority. But the detailed contents should be regulated in administrative law or special laws. The intellectual property should not stipulated in the Property Law asintellectual property is about invisible goods while the property in property law refers to visible goods. The fourth chapter is on the realization of priority. On the basis of studying the internal order to pay off of foreign states and he coincide of priority and other guarantee as well as our judicial practice, It suggests that the internal order to pay off and the coincide of priority and other guarantee (outward order to pay off) in China. In order to balance the interests among the clients and debtors and other creditors to assume the right of priority, the spheres and duration and means should be limited to avoid new unfairness for the purpose of the objective of substantial fairness and justice.