Priority System In Real Right Law

The priority is the guarantee real right which the specific creditor enjoys based on the legal's direct stipulation and which first receives recompenses on debtor's complete property or the specific property. The priority origin from the Roman law, which is created by the Rome's people for complying with the social life needs, protecting the weak's benefit, realizing the fair and the justice. Latter priority was continued and the developed in France, Japan, and so on. Then became a quite mature legal guarantee real right system. The priority system's establishment relates the national economy and the people's livelihood as well as society's stability, manifests the fair and the just spirit in law, and practices the modern civil law's value to person's ultimate concern. The priority system has special functions, which maintains public interests, carries out the social policies, upholds the fair, and expresses the justice and so on. It has been designing and practicing the idea of civil law, which treats the special person according to the specific personality with its special system. The unification priority system becomes the legislation's development tendency.With the development of society, it is an urge that giving priority to protect the special groups' interests. It needs reconciling by legislative policy. Priority is the best choice to resolve the contradiction. But priority is ignored in our country, has not been stipulated in the reality of laws. There are some priority's scattered stipulations in other laws. But the nature of stipulation is unclear, its potency is insufficient, and cannot give the enough concern to the disadvantaged minority. In our country the role of traditional guarantee way is limited, and does not have other substitutive systems. So safeguarding the interest of special creditor powerfully is impossible. The priority, which has the independent existence space in legislation, does not take litigant's meaning as a premise, and gives the special creditor the first receives recompenses directly. Therefore, establishing priority in our country is great significance to safeguard national interests and the disadvantaged minority's benefits, and realize the law's pursuance to essence the fair and the justice, and perfect security right system.Apart from the introduction and the conclusion, the article includes four parts. It discusses the priority system's related questions in detail fully. Bases on the outline of priority, the first part analyze the priority's concept and characteristics, and promulgates the priority's nature and potency thoroughly. The priority is thought to be a legal guarantee real right, and has the real right and the guarantee. Its potency mainly included first receives recompenses potency, the former generation position potency, overtakes potency and the priority's cis-position four aspects. Using the history analysis method and the comparison method, the second part elaborates the priority system's origin, continuing and the development, and obtains enlightenment to our country from the overseas priority system legislation in the contrast foundation. The thesis holds that priority originates from Roman laws, and it has developed into the right of legal mortgage. France established the unified priority system; Japan has caused its further consummate. The establishment of priority system is closely related to the national reality and the legislature thinking, the unification priority system has become the legislation's development tendency. The third part and the fourth part are the key points and the innovation places. The third part analyzes present situation and the insufficiency of our country's priority legislation, and elaborates the necessity and the feasibility of establishing the priority system in our country. The part holds the establishment of priority system not only is our country's theory and the practice development demand, but also the important way of consummating our country's secure real right system. The fourth part proposes advices to our country's legislation, and solves several theories difficult problems that hindered our country to set up the priority system, and elaborates how to design the priority system detail in our country.