The Rules Of Commercial Lien

The purpose of Commercial lien is to protect the normal business activities of businessmen, to promote the debt repayment swift and to ensure the safety of transaction and stability. The 231 th law of China’s "property law" set commercial lien, and set different provisions between civil lien on the subject and implicated relation. But he regulation in China’s "property law" is relatively rough, needing specific research and analysis.With mortgage, pledge, they constitute the type of the real rights for security in the civil law system in our country. Lien in civil law originated from the Roman law of malware defense system, commercial lien on the Italian merchant customary law is thought to produce in the middle ages. From the perspective of the legislative cases of lien from all over the world, there are three conclusions: 1. The distinction between civil lien and commercial lien exists with the legislation of the civil law countries, common law countries do not exist the classification. 2. In continental law system country, the problem of legislative model, the real right of civil lien is low. 3. In the commercial lien on the elements of the regulation of various countries there are nuances.The value of the commercial lien is to keep business transactions fast and safe, and the complexity of business transactions determines the rules of the commercial lien should be careful and precise. Under the fair value of civil law to pursue, in order to maintain the interests of the balance between natural persons in a single transaction, its focus is on a single trade fair or not in reality; The pursuit of commercial law is efficiency value, the businessman multiple activities in a certain period in the form of creditor’s rights debt as a whole, so any a creditor’s rights of creditors are overall in the possession of the debtor’s claims that commercial lien on any a chattel.In the body of the commercial lien, "property law" regulation for the enterprise in our country can not cover the existing business subject. Commercial law adjustment object is the economic life, so for "enterprise" and "businessman" debate more should be combined with the current economic environment. Now, to make the development of commercial law as the only enterprise as the adjustment object must have a premise, namely enterprise outside businessmen, enterprises become the absolute subject of business transactions, but at least now companies cannot cover of individuals in the market economy in our country, so the enterprise’s connotation and denotation is not enough to cover the current under the condition of market economy in our country business subject.On how to ensure the business subject, this paper argues that should be combined with "profit" and "commercial" two standards: "profit" means to carry out economic activities, for the purpose of making profits, not the basic life need; "Commercial" refers to foreign as a businessman engaged in economic activities. Specifically, the law gives individual and industrial and commercial door wide range of management, and individual industrial and commercial households need for registration and obtain a business license, the resulting commercial ability, bear the legal rights and obligations in accordance with the law, its completely in line with "for-profit" and "commercial" standards; Law the country contracts manage door can engage in commercial business, but there is still the country contracts manage door of self-sufficiency, so for self-sufficiency of the country contracts manage door because does not meet the requirements for the "non-profit" out of business subject, the for-profit the country contracts manage door to allow its through free registration to become business subject; For the "small", should be admitted that a natural person, for a "non-profit" vendors that it belongs to the business subject.In terms of the object of commercial lien, this paper argues that from the perspective of the legislation of our country at present, because the property law stipulates clearly has sanction and the priority of compensation with respect to power, namely lien is the nature of property rights, there is no sexual lien creditor’s rights, so our country’s commercial lien object should not include a ban on circulation. For the German law creditor’s rights of lien, the lien with defense functions, only can be modified to links up with our country legislation. Can consult applicable’s rights to fulfil his defense at the same time, for example, only has the rights of the subject matter of lien creditor, do not have sanction and the priority of compensation, in possession of the subject matter refused to return to force the debtor to repay the debt, in this case do not circulation can also be used as a lien subject matter. Registered securities unable to dispose of, therefore, should be left out of the object of commercial lien. The third person thing in the world can be established on the commercial lien, but shall strictly apply the principle of proportion and based on the business relations.There should be implicated relation between commercial lien subject and the obligee’s rights. For convenience of judgment, they shall be based on the limit of the business relationship between the west, and the business relationship can be judged according to whether the behavior is commercial purpose. Under the condition of the creditor’s rights having been obtained are not allowed to exercise the commercial lien, commercial lien shall include possession from both sides of business behavior and the premise of creditor’s rights and business behavior by creditors and debtors. Finally the exercise of the commercial lien in violation of the two sides agreed in advance and not in violation of the creditor’s obligation.The rapid development of market economy will produce all kinds of complicated commercial legal relationship. As an important means of business subject, commercial lien guarantee its creditor’s rights realize, increasingly highlight its status. So the provisions of article 231 of the property law in China should be explicitly, in the form of judicial interpretation as soon as possible to better guide trading practices, and judicial.