Study On American Lien System

As the special concept in Anglo-American law system, lien belongs to the category of security, compared to the relative concepts in continental law system. Under the traditions of continental law system, the security system exists in the form of realizing the security debts. The involved rights possess the property of subordination. The major system types consist of personal security (mainly the guarantee) and real security (all kinds of security interest). Though the lien in Anglo-American law system possesses the similar functions with the security in continental law system, its system structure is more complicated than the one in continental law system and it also has strong flexibility and adaptability. Therefore, from the angle of building the institutional system, it will be in favor of breaking through the traditional limitation of continental law system due to the deepening study of lien in Anglo-American law system. In this way, it can absorb and draw lessons from its function advantages, which will be helpful to perfect the security system of our country. Except the introduction, the thesis is divided into five parts.The first part refers to the conceptual analysis of lien. Lien belongs to Anglo-American law system and it has the social foundation for its system tradition and survival. For the scholars in the field of law scope of continental law, they have to be established in the pre-understanding of the traditions of Anglo-American law system and the related social foundation, in order to properly understand the lien in Anglo-American law system. Furthermore, it also requires the lengthwise review on the past and present of the specific system. As a matter of fact, the researches to such degree will never be enough at all. It will not be the terminal purpose of simply studying the Anglo-American law system. In this paper, it focuses on studying the differences between the specific system in Anglo-American law system and the related ones in continental law system from the angle of function comparison and then obtaining the results as the practical references for our country's law system. Therefore, during the studying on the origin of lien system and the interpretation of the concept, it should always insist on the researches based on the function comparison. Lien is the burden or security set on the others'property in order to performing the security debts or the obligations. To the certain degree, the meaning of lien is close to the real security in Guarantee Law of our country. However, due to the existence of the procedural rights, such as'Tax Lien'and'Judgment Lien', lien can also represent the procedural right which guarantees some substantive rights. On this point, during the research work of thesis, we did not apply the Chinese words to translate the concept of lien. On the other hand, if it requires the translation, the author is inclined to adopt the word of"youxianquan"which is not directly applied in the current legislation of our country. The"youxianquan"here is quite different from the meaning of"youxianquan"applied by the academic circle under the continental law system in deed.The second part contains the type classification of lien in American laws. Because of the numerous and jumbled lien system in American laws and no systemization as the security in continental law system, when referring to the creation rules, the biggest problem is the difficulty to deal with classification theoretically. Except the relatively comprehensive rules of lien on the chattel in American Uniform Commercial Code, we have to classify the lien at first in order to get the comprehensive and deepening understanding of lien system. It should be noted that the classification of lien and the establishment of classification standards are the simple and typological operation in theory and it still requires the specific treatment for the comprehensive understanding of practical lien.The third part refers to the creation rules and improvement of lien security interest in American laws. As the general rules of lien system, the guaranty involves everything, which can be the chattel or the real estate; the tangible property or intangible property. For the way of creation, lien can be stipulated by laws directly or agreed by involved parties based on the contracts. The date of lien creation is the day when the lien on debtor comes into effect; while the date of lien improvement is the day when the lien on the third party comes into effect. Before the lien improvement, the creditor can not be protected completely and effectively. Though the lien on debtor comes into effect, it has not been transformed into a kind of universal and efficient right. No matter the lien created voluntarily or forcefully by laws, it can not effectively confront the third party who obtained the property. A completely effective security right has to deal with the procedure of creation and improvement, which will then obtain the corresponding prior right of compensation in the bankruptcy distribution.The fourth part refers to the realization of lien in American laws. The realization of lien means that when the debtor does not implement the contract obligation, the creditor can realize his credit due to the value of the guaranty. There are the certain differences for the realization of security rights by the different lien systems. On this point, we interpret it mainly depending on the lien stipulated in statute laws. The realization of some lien needs to obtain the court's judgment; while others will appear under the breach of contract, no need to require the court's judgment. But if the debtor or other interested parties put forward the realization of lien, the guarantee needs to obtain the court's judgment. The realization of lien in American laws can be divided into two types according to the situation of the debtor: one refers to the realization of lien resulted from the breach under the situation of non-bankruptcy; the other one points to the realization of lien resulted from the situation of bankruptcy. Generally, the realization of lien will cover two legal relations: one is the legal relation between the secured creditor and debtor; the other one is the legal relation between the secured creditor and other creditors of the secured debtor.The fifth part refers to the significance of reference of lien system in American laws on Chinese laws. From the traditional angle of continental law system, the security interest system is unsuitable for the unified and international fields. Since the real right system in continental law system emphasizes its characteristics of inherent law, the real right law will always have the different appearance due to the difference of the country, nation and life tradition. From the type of the real rights, the demands of the rights by the different countries are different. Even under the globalized background with the increasingly frequent economic communications among the countries, due to the existence of numerous differences, the characteristics of inherent law of real right laws also appears. Furthermore, the real right laws are greatly influenced by the basic economic system. There is significant representation of the socialistic production relation and the capitalistic production relation in the real right laws. However, as one of the major contents in the real right laws, the security interests system possesses its particularity. As the method of realization of security interests and the convenient financing, the security interests are always related to the credit relation. In addition, the debt relation is the private law system with the international trends and then the security system existed depending on the credit will have the tendency of assimilation. Though the differences between the Anglo-American law system and the continental law system are still significant today, there are common places found gradually between them, which exists the possibility of communication. As the special system in Anglo-American law system, though the lien can only exists on the special foundation of Anglo-American law system, there is the reference significance for the continental law system from the angle of the realization function. China mainly adopts and follows the traditions of continental law system, but it does not belong to the country of continental law system in the final analysis. During the legal modernization since the modern times, China does not exclude the entrance of Anglo-American law system, which also creates the good opportunity. Based on the above analysis on the specific contents of lien system, the author discussed the possible reference significance of such system on our country's security system.