Research On The Legal System Of Commercial Lien

With the prosperity and development of the market economy,and commercial transactions frequently occur,due to the diversity of complex business transactions,commercial subjects in order to protect the security of commercial transactions involving Commercial lien issues more and more.The property law of the People’s Republic of China(hereinafter referred to as the "property law")the proviso of article two hundred and thirty-one of the part,for the first time made different from the commercial lien provisions of the civil lien,lien between enterprises are not need the debt secured and have the same legal relationship between the chattels taken as lien by the creditors.Which for the first time to the distinction between civil lien and commercial lien has made,the provisions of the commercial activities in the commercial lien is different from the forming conditions of civil lien.Commercial lien to protect the safety of commercial transactions,promote business affairs,enhance business between the main body of commercial credit,integrity of the creditor’s rights debt relations between balance business subjects has a special value system.However,China’s "property law" provisions of the commercial lien is very simple and rough,only give special provisions in the proviso part of lien on the commercial,commercial lien for basic or apply the civil lien provisions of the exception clauses of commercial lien only as a civil lien.However,with the development of market economy,legislation in the regulation of the commercial lien crude already can’t satisfy the need of the practice,makes the commercial lien difficult system to play its special value,for difficult problems.Therefore,in today’s increasingly complex market economy environment,in the face of the property law in our country for the shortage of the commercial lien provisions,therefore scholars and legal workers pay attention to the study of the commercial lien system,draw lessons from foreign and Taiwan regulations on commercial lien in the legislation,to our country commercial lien system be perfected,the commercial lien system can give full play of its transactions,maintenance of commercial credit,to ensure the safety of transactions,balance the creditor debt creditor’s rights debt relations role in the world.In this paper,the semantic research,comparative studies,historical research,literature study method of Commercial lien system was studied.The thesis of four parts from the Commercial lien system were analyzed.The first part introduces the concept of commercial lien.Firstly,the commercial lien is more prominent than the civil lien.Then the commercial lien and the civil lien are respectively distinguished and compared from the origin of the two,the main body of the right,the implication and effect between the guaranteed creditor’s right and the lien.The most significant difference between the two is that the commercial lien is more lenient than the civil lien,and there is no need for the same legal relationship between the creditor’s right and the lien.Then it analyzes the competition between the commercial lien and other security interests.Finally,it analyzes the system value of commercial lien.It plays an important role in maintaining commercial credit,breaking the restriction of the same legal relationship,improving the efficiency of commercial transaction and balancing the interests of the creditor and debt relationship of the companies.The second part discusses the evolution and defects of China’s commercial lien.First of all,this paper describes the evolution of commercial lien in current law of our country.In this part,it mainly introduces the evolution of China’s commercial lien in the current law,as well as the constitution of the commercial lien in the property law,including the positive and negative conditions.In view of the"property law" the provisions of the combination of comparative law and practice,and then elaborated on China’s commercial lien system defects.This paper expounds in detail the scope of the main body of the commercial lien system,the subject of the property is not clear,the relationship between the expansion of the lack of restrictions on the debt has been the lack of special provisions of the liquidation of the defect.The third part introduces the legislation of commercial lien in Taiwan and abroad.And through the legislation of Germany,Japan,Switzerland,in the Taiwan area for commercial lien provisions described,for our country to solve the defects of commercial lien system on the right of the reference significance,gives China some inspiration.The fourth part puts forward the suggestion of perfecting the commercial lien system in our country.First of all,in the subject of commercial lien,the scope of the subject to expand,the individual industrial and commercial households and eligible rural contractual business households into the scope of commercial lien.Secondly,it clarifies the ownership of commercial lien and explains "the debtor ’s movable property" as the movable property that the debtor has to the creditor,and refine the stipulation of commercial lien system and allow it to apply the goodwill acquisition system.Then,the commercial lien restricts the expansion of the implicated relationship through the business relationship,emphasizing that the creditor ’s right is based on the business relationship and the creditor holds the movable property of others based on the business relation.Finally,there is a special provision for the retention of unexpired commercial liens.In cases where the debtor has no capacity to pay,the creditor is allowed to apply the commercial lien to unexpired claims.