Research On Priority System

The priority system was originated in the ancient times Rome, matured in modern Europe. The codes which use the French pattern in mainland legal system stipulated the priority system. But the codes which use the Germany pattern in mainland legal system stipulated the priority system in special laws and did not have the unification of the priority system in the civil code. There are no systematic provisions about the priority system in our country's civil law. Fuzzy understanding and disputes exist for a long time among theoretical circles about basic questions like the conception, the nature and the legislation value of the priority system.Our country is carrying on the formulation of the civil code presently. It is helpful to conduct fundamental research to the priority system, excavating the priority system's potential, promoting the priority system's theoretical understanding. Conducting the research on other countries'mature legal systems and introducing the overseas'advanced experiences can have very good instructive functions to our country's legislation work. Through longitudinal historical analysis and various crosswise contrasts this dissertation promulgates legislative value of priority system and points out that in our country's civil and commercial law the priority system must be established, this dissertation also puts forward the systematical localization and the legislation frame of the priority's system. The dissertation is composed of the following parts:First part: Foreword. The foreword has carried on the inductive analysis on the historical evolution of priority system. The dissertation carries on the comparison through the longitudinal history analysis and from the comparative angle of view of various countries and area about priority legislation. Through longitudinal and historical analysis as well as crosswise contrasts, the article appraised the priority system legislation in the world scopes in present situation, elaborated the priority system from"trousseau of the wife's priority to return"of its embryonic form to"the ward priority"which was developed into a complete system gradually, analyzed the role transformation of priority - to transform into French old guarantee method in the legal history from the Roman law privilege system. Through analyzing the priority system in the realization of essence justice, fairness and protection of the weak the author points out the research value of the priority system.Second part: Comparative analysis of priority legal regulation in various countries. In this part through the comparative analysis about priority system's vertical legal regulation in France, Japan, Switzerland, Germany and so on, with the method of crosswise contrast, the dissertation has induced legislative common grounds of the priority system under separately the French pattern and the Germany pattern. The author has analyzed the priority system's legislative differences in the various countries, and then discussed how to profit from the overseas'successful experiences through the different legislative patterns and 10 nations 'crosswise contrasts. It plays an important role to construct priority system's legislative frame in our country. Third part: Priority's legal nature. This part analyzes the non- unification essence theory and the unification essence theory about the priority's legal nature as well as our country's domestic theories about the priority nature, for example, non-right theory, the creditor's right theory, the real right theory, the real right from creditor's rights theory . This dissertation affirms the rationality of the four theories in certain scope, at the same time has pointed out the limitation of these theories. The author pointed out that from the different angles, the different theories have made correct analysis on the priority essential attributes separately in the certain scope, but the above four theories'accuracy only can be limited in certain scopes. For priority essence attributes'understanding ,non- right theory, the creditor's right theory, the real right theory, the real right from creditor's right theory are scientific, reasonable in studying certain categories temporarily from the microscopic angle separately, but if summarize the legal attributes of all priorities from the macroscopic angle, the above four theories all have the limitations. Through this part of comparative analysis, this dissertation has swept understanding barriers away and promulgates diverse attributes to the priority. It is vital for priority in our country's legal framework and systematical localization.Fourth part: Systematical localization and legislative frame in our country's future civil code about priority system. In this part through enumerating our country's present legislation in which stipulated priority, this article summarized our country's present legislation regarding the priority legislation, pointed out the flaws regarding the priority system which is loose, not entire and deeply analyzed each kind of reasons which have created presently legislative situation. Through mediating the denial to the affirmation of two theories which have carried on the analysis to the priority's function and value, the author comparatively analyzed the overseas'legal regulation. On the basis of each theory's critique understanding of priority essential attributes the author carries on the legislation design to priority system. This article pointed out that the localization of priority system in the civil law system must persist in scientific, reasonable and realistic manner, we cannot copy mechanically and apply slavishly. We should distinguish the treatment in view of the different priorities in the legislation arrangement. We may adopt the way in view of the priority system's legislation pattern which the general and special legislation should be unified and the author summarized the principles which had to be followed in priority's legislation in the future.Fifth part: Match between priority system and bankruptcy law system. From the practical angle the author has discussed the match problem between the priority system and the bankruptcy law. In this part of analysis, through comparison of various countries' bankruptcy law and vertical legal regulation the author discussed the staff wages priority's legislation conception about work wages in our country's bankruptcy law.