Study On The System Of Commercial Lien Of Our Country

Article 231 of The Real Right Law of the People’s Republic of China provides that: “ The chattels taken as lien by the obligee and the obligee’s rights shall fall into the same legal relationship, except for the lien between enterprises.” From making an exception to the establishing element of the civil lien“ the same legal relationship”, this article laid the foundation of the system of commercial lien in the law of our country.The biggest difference between civil lien and commercial lien is that the requirements to the links between the subject matter of lien and creditor’s rights are different. The special provisions of the establishing elements of commercial lien, makes the protection degree and level of civil and commercial subject not that balanced, which seems quite opposite to the principle of equality and fair of civil law. But this is determined by the specialty of commercial activity to a large degree and has its necessity. Because the target amount of business transactions are fairly big,and the transactions are frequenct and last long, when there is dispute,it is very difficult for the court to clarify which transaction conform to the element of “ the same legal relationship” in that many transactions. So the establishment of the commercial lien benefits the safe, efficient and smooth going on of the commercial transactions and the convenient carrying out of the judicial practice, which is the very value function of the commercial lien. The high requirements to the efficiency and safety of the commercial transactions determines the occurrence condition of the commercial lien is special, and the scope of its application shall be enlarged accordingly. The high requirements to the efficiency and safety of the commercial transactions determines the occurrence condition of the commercial lien is special, and the scope of its application shall be enlarged accordingly. But the stipulations of law of the commercial lien of our country is too simple, makes it difficult to control the specific situations of the application of commercial lien in the judicial practice. So,maybe a deep study on the problems of the system of commercial lien can benefit to resolve these questions. It shall further expand the application subject of commercial lien, make clear the identification of the implication of the commercial lien, regulate the scope of exertion of the commercial lien, further improve the system of commercial lien. In its application, it shall enact some corresponding judicial interpretations to conduct the judicial practice, thus to better maintain the safe and stable of the transactions, to promote the prosperity and development of the economic of our country, and to better safeguard the legal rights and interests of businessman.Except introduction and conclusion, the article consists of six parts.The first part briefly introduces two cases, one of which is a lien dispute appeal between Mingtong Transportation Company in Guangzhou and Guangzhou Boiler Company, the other is a property damages dispute appeal between Mr.Liu and a logistics company in Shenzhen.The second part summarizes the issues of dispute of the selected cases, and comes up with the problems this article will discuss from the issues of dispute and the judgements of the court.The third part focuses on the summary of the commercial lien. This part mainly contains three aspects: firstly, the source of the commercial lien; secondly, the comparison investigate of the commercial lien; thirdly, the core characteristics of the commercial lien.The fourth part analysises the defects of the system of the commercial lien in our present law, and it mainly discusses the deficiencies in the system of the commercial lien in our present law, such as the limitations of the subject scope of the commercial lien, the identification of the implication of the commercial lien is vague and the abuse of the commercial lien by the obligee.The fifth part concentrates on the jurisprudence of the commercial lien. This part also concludes three aspects: firstly, the subject of the commercial lien should be equal. This portion mainly discusses the disputes that only the corporations to be the subject of the commercial lien and individual businesses, leaseholding rural households should also be included in the scope of the subject of the commercial lien; secondly, sums up and summarizes the commercial property of the activities governed by the system of the commercial lien: the object of the commercial transactions is means of production, the commercial transactions are frequent and stable, the amount of commercial transactions is big and the commercial transactions are rolling calculation; thirdly, briefly analysises the efficiency value of the commercial lien: the swift and security principle of the commercial transactions and the efficiency value consideration of the establishment of the commercial lien.In the last part of this article is the assumption of the consummation of the system of the commercial lien. On the basis of the analyses in the foregoing parts, in the view of interests balance, this part comes up with these consummation suggestions: expand the subject scope of the commercial lien, make clear the identification of the implication of the commercial lien and regulate the exertion scope of the commercial lien, further improve the system of commercial lien. Hope to achieve the legislative intent and value of the system of the commercial lien, to promote the further prosperity and safely and efficiently development of the commerce.