Research On The Elements Of Commercial Lien In China

The lien system,as a statutory security real right,is stipulated in China’s "Law on Property Rights" and other laws.It is generally considered that the lien is divided into civil lien and commercial lien.It is said that Article 231 of China’s "Real Right Law" provides for commercial liens in the form of "except for liens between enterprises".Compared with the civil lien,the commercial lien has made changes in the subject,the lien and the debt relationship,which reflects the characteristics of commercial behavior and ordinary civil behavior.First of all,its subject is limited to "enterprise",and there is no special restriction on civil liens.This rule excludes ordinary civil subjects from the subject of commercial liens,distinguishing between civil liens and commercial liens.Applicable scene.Secondly,commercial liens do not require that the creditor’s lien and the creditor’s and debtor’s claims have the same legal relationship,that is,a breakthrough in the same legal relationship emphasized by civil lien.This provision reflects the special pursuit of the principle of efficiency in commercial law.Finally,commercial liens are generally used in legal relationships that occur as a result of commercial behavior,and cannot be waived for the application of civil liens simply because the subject is an enterprise.Since our country adopts the legislative style of civil-commercial integration,and only stipulates the commercial lien in the form of a proviso,there are still some problems and improvements in the practical application of commercial lien.According to the daily work and the combination of what I have learned,the author believes that commercial lien has some issues to be improved in terms of the subject,the same legal relationship,and the property right of the lien.The market economy system has been continuously improved,and various types of business entities have been established,but non-enterprise business entities cannot be protected by the commercial lien system because they are not within the scope of application provided by law.Another example is that the commercial lien system does not require that the lien and the creditor have the same legal relationship,but it does not give a clear explanation for this,which leads to the risk of the commercial lien system being expanded.Finally,on the issue of lien ownership,the commercial lien system also makes detailed provisions on the ownership of liens held by creditors.Of course,this problem also exists in China’s civil lien system.That is,whether the property held by the creditor can be owned by others but only the property owned by the debtor.The vague provisions on this issue have also caused the problem of different rulings of different courts in practical application.In view of the above problems,the author attempts to study China’s commercial lien system by collating and analyzing the existing academic viewpoints,combining existing judicial precedents,and adding ordinary work experience.This article takes China’s commercial lien system as the research object,starting from the constitutional elements of commercial lien,analyzes and summarizes the existing problems of our country’s commercial lien system,and puts forward comprehensive suggestions based on reflection.In addition to the introduction and conclusion,this article is mainly divided into four parts:The first part starts with the constitutive elements of commercial liens in China,and analyzes the problems that the system currently has in theoretical norms and practical judgments in terms of subject,object,and the same legal relationship.The second part,taking the subject of commercial lien as the main content,combined with the doctrine to analyze the rationality of the term "enterprise" currently used,and then through the perspective of comparative law,learn the specific regulations on the subject of commercial lien in foreign countries.The subject of commercial lien should not be simply summarized by "enterprise",but should be combined with business and profitability to specifically analyze whether the commercial lien system is applicable.The third part,taking the object of commercial lien as the main content,from the perspective of the type of object and the tenure of the object,analyzes the current doctrine of the object type and tenure of China,and through the study of simple extraterritorial legislation Objects of commercial liens should include securities and exclude real estate.In addition,the object of commercial lien should in principle be the property of the debtor.When the lien is in good faith,it can exercise the commercial lien on the property owned by the third party through the good faith acquisition system.The fourth part,from the perspective of the same legal relationship of commercial liens,first clarifies the historical evolution of the transition from implication to identity,and explains the problems arising therefrom.Then through doctrine analysis and legislative study,we believe that China should adopt general relevance standards for the relationship between claims and liens.