On The Judicial Application Of Lien

Lien,as a legal security real right,its scope of application is clearly defined by the general principles of civil law,property law and other laws,but it is mainly applicable to contractual debts.In the judicial interpretation of security law,it is clear that there must be a relationship between lien and creditor’s rights.However,the property law of China is expressed as the same legal relationship and distinguishes between commercial lien and civil lien“ The term "inter firm lien excepted" refers to commercial lien.As for the modification of the property law,it separates the establishment conditions of the civil lien and the commercial lien.Does the establishment of the commercial lien need not involve any relationship between the creditor’s rights and the lien? How to distinguish and apply the same legal relationship and implicated relationship between civil lien and commercial lien in judicial practice?On the above issues,this paper studies through four parts.The first part explains the origin of lien and the interpretation of article 231 of property law.First of all,the origin of the lien system is put forward,and the legal definition of the lien and the origin of the priority effect of the lien are expounded.Then it analyzes article 231 of the property law from the provisions of the lien system in China’s law.Based on the expanded understanding of the implicated relationship in the acquisition elements of commercial lien,it leads to the separation of the implicated relationship between civil lien and commercial lien.The second part studies the legislative style of lien.First of all,this paper discusses the different provisions of civil and commercial Liens in Switzerland and Chinese Taiwan under the legislative model of civil commercial integration;then it discusses the different provisions of civil and commercial Liens in Germany,France and Japan under the model of civil commercial separation;finally,it summarizes the civil and commercial liens under different legislative models.The third part analyzes the judicial determination of "the same legal relationship" and "implicated relationship" in Lien from the theory and practice.First of all,this paper discusses the application of the same legal relationship in the judicial practice of civil lien through cases,and then studies whether "the same legal relationship" can be applied in different types of debts by listing.Then from the theory of the relationship between the creditor’s right and the creditor’s right,the theory of the relationship between the creditor’s right and the lien,this paper determines the theoretical determination of the relationship between the commercial lien and analyzes the determination of the relationship between the commercial lien and the lien in the practice field of our country through the judicial precedent.The fourth part is about the lien system.First of all,this paper puts forward some thoughts and suggestions on the system of lien in China from two aspects: the recognition of commercial lien and the recognition of civil lien.Including the definition of commercial Lien from the perspective of "commercial subject" and "commercial act",the understanding and application of "the same legal relationship" and further analysis of the acquisition elements of special lien.