The Legislative Pattern And Realistic Choice Of Lien System

As a guarantee, the lien is referring to occupy others'thing legally, it did not pay off until the creditor's rights have matured, and the creditor enjoys the rights to leave the possession to the guarantee. The lien system has a long history, and it is stipulated by many countries legislation. Chinese law has also stipulated the lien, such as General Provisions of the Civil Law, Guarantee Law and Contract Law. But in the process of observing and studying the legislation of some countries, we discover that there are many defects of our legal rules about lien. such as the scope of application of lien is narrow, the way of guarantee are indigent and the system function are lacked etc, it is very hard to satisfy the economic life of our country develop rapidly.The Real Right Law summarized and coordinated to our active lien system roundly, it not only expanded applicable scope of the lien system, bur also made corresponding adjustment and supplement to every main system of lien, but the Real Right Law still has disadvantage and pretermission about the lien system. This thesis proceed with academic analysis to analyze the legislative model of lien on continental legal system and Anglo-American legal system, and combine the active legislation and justice explanation in our country, lien system has been deeply and systematically investigated, and a concrete assumption of implanting lien system has been proposed, which expect to accelerate our legislation of security interest system. The text is mainly consisting of five sections.The first section of the paper is to differentiate and analyze the concept of lien. At first defined the concept of lien from broad sense and narrow sense, and then it introduced the legal features of lien which included the real right character, the security interest character, the legal character and the dual effectiveness character. Finally, the paper compared the lien with counterargument rights for simultaneous performance and standoff rights, including distinguish and compare from respects such as character, applicable scope, object, purpose and effectiveness etc, in the hope of having a deeper knowledge of historical evolution of the lien system.The second section is to analyze the legislative model of lien on continental legal system and Anglo-American legal system. This part has first introduced the real right characteristic and legal right characteristic on continental legal system, and has chosen several representative countries of each pattern to make a concrete analysis. Then according to compare the statutory pledge system in Germany, privilege system in France and the first privilege in Japan, has analyzed the essential characteristic of the lien system from function vision, and draw the conclusion that there are common in essence between the real right characteristic and legal right characteristic on continental legal system. Finally, the thesis analyzed the regulation about the lien system on Anglo-American legal system, it mostly divided into common law possessory liens, equitable liens and maritime liens. It besides being based on legal rules, the lien can be arranged in the contract by interested party, and make matting for our country use for reference the Agreement lien.The third section has analyzed the establishment of lien. At first introduced the establishment pattern of lien based on its foundation. there are three patterns including based on legal rules, arranged in the contract by interested party, based on trade tradition and habit, and then introduced the requirement of the lien's establishment, which included active important condition and negative important condition. Active important condition arranges including that creditor's possession of debtor's property, debt linking to the property, overdue debt. And negative important condition arranges including that exclusion of lien by a contract, execution of lien against social order, conflict of lien with creditor's obligation, conflict of lien with debtor's connotation. Finally, to compare to the legislation with Germany, Switzerland, Japan, Taiwan area and other countries, discussed the establishment pattern of lien and its applicability of our country, and definitude the meanings of each establishment pattern.The fourth section has analyzed the lien's realization and termination. Firstly introduced the condition of lien's realization, includes inform the debtor carry out his obligation in assured period, confirm the grace period that the debtor carry out his obligation after leaving the possession, at expired period by law or agreement, debtor did not perform his obligation and not provide the adequacy guarantee. Secondly, the thesis introduced the pattern of lien's realization. It has three means included marking down lien's thing in price by agreement, the auction and sale of lien's thing by law. Finally, it introduced the cause and consequence of lien's termination. The termination of lien due to the common reasons of the termination of real right and guarantee, it has special causes to terminate, due to another guarantee, losing the possession lien, the extension of the expired period. After the lien is terminated, the debtor has the right to request the creditor returns the possession back. If the lien die out because of the common cause, and the damage is due to the debtor or other people, the debtor could request the debtor or other people to respond the compensate obligation.The five section of thesis put forward the suggestion about how to perfect our country lien system legislation. Firstly, has analyzed the regulation of legal norm to lien system and problem such as General Provisions of the Civil Law, Guarantee Law and Contract Law, and then analyzed the regulation and consummation to lien system about Real Right Law. Next compared the statutory pledge system in Germany, privilege system in France and the lien in our country, and draw the conclusion that the lien in our country either belongs to the real right characteristic, or has no many material differences with the statutory pledge system in Germany. The thesis has pointed out the faultiness in Real Right Law and the problem in our security interest legislation. And last aimed at this issues put forward the suggestion about how to perfect our country lien system legislation, such as to add statutory pledge, and absorb the existing statutory lien; to add lien with mere possession function and recognize the lien decided by intention; the possession should not limit of alienability; the choosing right should not control by creditor when the debtor offers another guarantee. And wish such suggestion could make with contribution for our lien system.