Research On The Legislation Of Priority Right Institution

Priority right mean specific creditor based on law directness stipulate but enjoy on total property or specific movable property of debtor, right that the value of the real estate has priority to be met. The nature of priority is the legal real right of pledge, legal, guarantee into particularity of creditor's rights, needn't in order to occupy or is it carry on common to show , have priority person who repay , render a service by characteristic that law stipulate along location directly to register. Priority comes from Rome Law, its purpose for protect the weak, justice not fair to maintain or should need of fact not a certain. In the course of law gradual progress, every national law of the world is continued and had nothing in common with each other priority by the degree, France and Japan civil law adopt as heir and develop into the intact priority system joyfully, Germany's civil law has not accepted the priority system considering the trade is safe. According to several important codes of the people, though various countries are each with particular emphasis in regulating specifically because of the change of actual conditions, but leave one seat for the priority system. This prove priority maintenance public interests that system reflect , protect disadvantaged groups survive the legislative thought of interests, reflect the value orientation of the ultimate care to people of law, accord with the civil law, development trend of the especially modern civil law. "General rule of the civil law"of our country has not set up unified priority system, have only stipulated several concrete priorities in some special laws and procedure law and judicial explanation of the Supreme Judicial Court. With the promotion of the economic system reform, the urgent needs that legislate to priority have appeared in social life of our country and economic life.But because priority system contrary to equal principle of creditor's rights, abolish " time formerly too, old civil law principle on right formerly ", especially priority legal term and concept battle make some basic problem of priority for dispute, so priority legislates to be opposed by a lot of scholars.Though, it is not the only choice to the thing that the special interests colony protects that priority legislates, but the maturity in our country's market economy , perfection of legal system and social security system need a long course, whole legal accomplishment of people is it reach western legal knowledge level , people of developed country , it needs to be quite long-time efforts to want, and we face protecting it under the realities needed urgently of the special social relationships again, set up unified priority system, can yet be regarded as a kind of rational and choice properly. For structure priority system of our country, selected works this fetch priority legislate characteristic France , Japan , Italy 3 the people code, kind , content in priority,, along location, is it go on comparative research to render a service. France's civil law starts the legislative beginning of priority , , and priority legislate to exert an enormous influence to the priority in later age along the location and idea of rendering a service correctly for its pair of priority categorized methods. But system, priority of France, have some question too, if content repeat, obey location regulation unreasonable, getting leaky legal provisions. Japan fetch privileged perfect system first, type succinct, content clear, standardize tight week, is it have heavy reference meaning very to legislate to our country, but Japan civil law stipulate fetch privilege and special to fetch privilege compete fashionable the latter have priority first generally, this text think, fetch privilege legislative purpose to is it survive interests and common interests to ensure first generally, Japan regulation and existence interests of civil law higher than other legislative idea of interests accord with , deserve the discussion .The regulation that Italy fetches privilege first is most exhaustive, legislate to especially pay attention to benefit expenses , tax revenue and social security altogether, embody and is influenced by theory of social standard. But Italy the people code the people unified private code that trader unify, so it fetch privilege various in style first, its concrete to have no certain rule to follow along the location, bring certain degree of difficulty for drawing lessons from. Through relatively studying, this text thinks that the priority of our country legislates on the basis of using relevant national ripe experience for reference, will consider the legal culture in the native country and currentlegal provisions, when set up priority system, try not to destroy the existing system of real right of pledge of our country, economize law resources and legislative cost. Adopt the legislative mode of small priority on the legislative mode, divide priority into general priority and special priority , special priority is divided into the special priority of the movable property and special priority of real estate again, the right and lien form the system of real right of pledge together with the hypothec , quality.This text does not consider priority by way of registering and occupying in order to show commonly either while agreeing in legislating in priority , potential threat exists to the trade security , such as the restriction not proper , will cause the new unequal actual conditions , is it guarantee creditor's rights range , discharge to priority order is it restrain from and not common to show to remedy method to go on to propose, in order to maintain priority people and interests of other creditor balanced , prevent leading to the fact the new unfairness from. The last part of the thesis has touched upon the legislation of the priority system of our country is designed. This text thinks that the priority of our country legislates to adhere to legal principle, efficiency principle and restriction principle, on the basis of using legislative experience of priority abroad for reference, consider the reality of our country. Set up first general provisions before concrete priority system regulation, call " the general regulation of priority ", it is mainly meaning and kind of confirming priority, point out that priority does not have the reparability and thing previous generation's location, stipulate priority establish important document, define target of priority and guarantee range, the condition that priority eliminates and legislative way that " the codes of the people are combined with the special law ".To the kind of priority and sureness of the content, should consult the relevant regulation of the foreign law first, need content that priority protect in our country, and outside getting rid of legislating with content that lien conflict, require social relationships that priority protects hold in urgently of our country society, make it meet law's and reality of our country needs. As to the thing that priority and renders a service along the...