Commercial Lien Elements

Right of retention divide as civil retention and commercial retention in history. Theformer derived from Roman law, which has no property rights effect,only kind ofright of defense in procedural law. The latter derived from the Italian. and shows thecharacteristics of property rights. Though both of them are Right of retention,but thereare many difference between them. The origins of civil retention can be traced back toRoman law on the malicious defense and the defense based on fraud,leading to therights of reject the payment.However, Commercial lien evaluate from customary lawby the medieval Italian merchant groups. Both the origin and value orientation arevery different, so in the the separation of civil and commercial countries, the CivilCode and Commercial Code set provisions respectively, on contrary, the civil unityof the country, Civil lien often expressly provided in the Civil Code, and Commerciallien give special provisions on the commercial lien, the China’s legislation is the latter.Property Law of the People’s Republic of China (hereinafter referred to as the"Property Law")231set up China’s commercial lien system. The clause to makeexceptions in the form of the elements of the general Right of retention in the same legalrelationship，which create a commercial lien system has never been mentioned in ourlegal system. But at the same time is worth noting that the formulation of theprovisions are too simple, whether it would provide creditors strong protection anddestruct the balance between the parties is worth thinking.The first part of this article, primarily discuss the main elements of the commercial lien,involves in it’s Origin of history,other countries legislation from thelegislative purpose part, in order to comprehend the meaning of” enterprises “inProperty Law Section231, the connotation should be expended.In the second part, proceed with the object of commercial lien, to discuss and setthe Constitutive Requirements. And think deeply on the controversy, such as BonaFide Acquisition or proportionality principle can be adopted by the object ofcommercial lien. Combination of other countries legislation and practice, on the basisof our own country’s situation present my views.The third part Elaborate the acts Elements of commercial lien,,especially theproblem of “The possession of movable property and claims of creditors do not haveto belong to the same legal relationship”. This helps commercial lien, to be betterapplicable. Avoiding over-protection of creditors’ rights, achieving the originallegislative purpose.