The Lien Was Established Elements

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.Although General Provisions of the Civil Law,Guarantee Law and Contract Law of our country has involved the component element of lien system,with the development of China's social market economy,our country's current legislative provision on lien lags relatively. It is a pressing task to satisfy the economic life of our country develop rapidly.The Real Right Law coordinated and summarized our active lien system roundly,and made corresponding adjustment and supplement to every main system of lien,but still has disadvantage and pretermission about the lien system.By analysing the legislative model of lien of several representative countries on continental legal system,draw the conclusion of the essential characteristic of the lien system,and demonstrated the requirement of the lien's establishment,which included active important condition and negative important condition.There are three chapters in this thesis:Chapter1 is to analyse the legislative model of lien.Pointed out that the legislative character of lien would influence the content of the requirement of the lien's establishment.By choosing several countries and regions representatively of continental legal system, analyzed the essential characteristic of the lien system from conception vision to function vision,and make matting for infral argument of active important condition and negative important condition.Chapter2 is to analyse active important condition of the lien's establishment.Active important condition arranges including that creditor's possession of debtor's property,overdue debt,debt linking to the property.Aimed at these issues included:the ownership and scope of subject matter of lien,the exception of overdue debt,definite the exception and debt linking to the property,etc.Chapter3 is to analyse negative important condition of the lien's establishment.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,creditor's infracting rights reason of possessing debtor's property.Aimed at the imperfect actuality of our negative important condition system legislation,in the process of observing and studying legislative success of some countries,the writer demonstrated the reason why negative important condition above should be designed,and clarify the specific application of negative important condition by enumerating examples.