Analysis On The Elements Of "the Same Legal Relation" For The Establishment Of The Lien

The lien, as a statutory real right for security, depends entirely on the legislations to determine its application. For a long time, our civil law has placed strict limit on the application of the lien. In order to meet the practical needs, the legislators put forward that only if the creditor is in possession of the subject which has the connection with the creditor's rights, can the law grant him a lien on the subject. Furthermore, Real Right Law has made some breakthroughs: no matter what is the cause of the creditor's right, a lien can establish if the creditor is in possession of the subject which is in the same legal relation with the creditor's rights.Among the above revisions, the concept of"the same legal relation"is a legislative innovation. Comparing to the concept of"the connection"in the Civil Code of the Switzerland and Taiwan district, which one is the better? Even if the concept of"the same legal relation"is the better, it may lead to some problems. Therefore, this article is focused on comparing the two concepts, then seeking the improvements.The article is constituted by the following five chapters:Chapter 1 deals with two kinds of the typical legislations:Some regards the lien as a real right, while others regard it as a obligatory right. The author tries to jump out of the literal restriction to explore the authentic content of"the lien"in different codes. It turns out that the priority of claim to discharging a debt is actually existed in the codes of the obligatory right lien, but in the name of other real right for security.Chapter 2 deals with different effects of the rights in the lien to seek the premise for the lien. Then our lien legislations are introduced.Chapter 3 makes an analysis on our lien legislations. Focusing on the concept of"the connection", two kinds of legislations, three kinds of theories and three kinds of exploitations are involved into discussion. Owing to its openness in connotation, dissensions are among the scholars, not to mention that Professor Shi Shangkuan doesn't have the authority as a legislator does. So the uncertainty in the concept of"the connection"leads to the difficulties in practice. Then the lien regulation in Real Right Law is approved because it fully reflects the purpose of the establishment of the lien. On the basis of enlarged scope of the creditor's rights, the concepts of"the connection"and"the same legal relation"are discussed in detail.Since the concept of"the same legal relation"is the better, Chapter 4 pays attention to the potential problem caused by the concept of"the same legal relation": the creditor's right of keeping the subject is shrinking. Then some legislative suggestions are put forward. By expending the creditor's right of demurring and self-helping in Obligatory Law, we can fill up the deficiency of the shrinking right of keeping the subject in Real Right Law.