The Study On Several Question Of Lien

As an important part of the Guarantee System, both the production and development of the lien, from the source of the lien, have their own social foundations and produce a certain effect, which can be found out from the development of various lien systems since the Roman Law.Historically, law has designed the lien system so as to seek the civil law's principals of impartial and reciprocal justice. More specifically, under the circumstances that the creditor has occupied the debtor's property existing a certain implicating relationship with the credit, if the debtor is permitted to withdraw his or her property while not to vest the creditor with reciprocal rights before the creditor can be liquidated ,it could lead to the consequences that the rights of the creditor are reluctant to exercise, even the credit could never gain liquidations, undoubtedly which is extremely partial to the creditor. So the law vests the creditor with the lien upon the debtor's property to ensure the liquidation in order to balance their interests and dispel partial conditions when the creditor has paid his or her labors, in the legal relationships containing property delivery, which always the fundamental means and conditions for the existence of human beings. After the creditor doesn't still liquidate the due debt, the creditor can be revarded from the subject matter of lien to staisfy his obligatory right.Only under this circumstance can the impartial and reciprocal principals in civil law system be definitely implemented and put into practice instead of falling into a more scrap of paper.But in the process of observing and studying the legislation of some countries, we discover that the scope of lien's effect in our civil law is getting small. In addition, our legal fiction is not very good. Owe to the defect of our law basis, thus, we have to use judicial interpretation to explain and standardize, although many laws have been made. In doing so, these judicial interpretations play the part of legislation practically, and this expresses in the right of lien as well. In this thesis, the writer inquires into some the orical problems exsiting in right of lien and tries to correct and dear some unreasouable and confused understanding and explaining.then, chapter,in our legal system and the limited scope of slibject matter of lien, lien not only apply to several contracts stipulated, such as contract of processing, transportation contract, keeping contract, and commission contract, but apply to quasi-contract relationship, such as management without mandate. With regard to the scope of subject matter of lien, it includes not only personal property, but also real property and valuable instruments which possess characteristicics of personal property; contains not noly merchantable things, but also prohibited merchantable things and limited merchantable things, chapter III is about question of deadiline of lien, lien isn't invalid as prescription of quaranteed obligatory right completes ,but lienor possesses the fruits odf subject matter of lien, because of his occupying cubject matter of lien, because of his occapying subject matter of lien.therefore lien is different from mortgage, is without excluded period.Chapter enumerates several situations of extinguishment of lien,emphasize to analyze that guaranty lead to extiuguishnent of lien and the loss of possession lead to extinguishment of lien.In addition, elaboratethe influence of the transfer of obligatory right and liability to lien. Chapter V sum up and analyze question of the priorty of lien, specially analyze the situation where lien and other read right for security coexist, then obtain the general principle that lien is prior to other real right for security. The end of article summarize the viewpoiut of the whole writings.