Priority System In China's Legislative Choice

There are no systematic provisions about the priority system in our country's civil law. Fuzzy understanding and disputes exist for a long time among the scientists circle about the basic questions like the concept, the nature and the legislation value of the priority system. Currently our country is making the real right law. The lawmakers are still displaying a wavering manner on whether to need to stipulate a unified priority system.This article tries to undertake a systematic research on the basic theoretical questions of the priority system and to give comments and suggestions on the legislation choice of the priority system in our country.The priority refers to the right which a specific creditor enjoys based on the legal direct stipulation to first receive recompenses from value of a debtor's gross property, his specific movable property or real estate. Its characteristics are legality of right happening, particularity of the guaranteed creditor's rights and non publication outwards. The nature is the legal guaranteed real right. The legal effect of priority lies in guarantee of realization of certain special creditor's rights. But its end purpose lies in realization of social policies of pursuing the national interests, public interests, human rights protection, transaction maintenance, safeguard of weak people etc.The priority system initiates in the Roman law. The contemporary civil law of various countries has stipulations to the priority. This article comprehensively inspects and compares the legislation cases of establishment (mainly the French, Japanese and Italian civil law) or non-establishment (mainly the German, Swiss and our country Taiwan area's civil law as well as the British and American law) of unified priority system as well as the present situation of our country's priority system legislation. It discovers that the civil law of each country draws support from the priority or the similar priority legislation technology for the special creditor's rights protection. But whether the priority system should be unified or not, depends mainly on the structure of the guarantee real right in the civil law and the legal culture tradition difference of each country.Through the comparison of various countries' priority legislation and in view of disorder and inconvenient application in our country's priority legislation, this article thinks that it is necessary for our country to set up a unified priority system. Its significance mainly manifests in strengthening of legalprotection of special creditor's rights, expanding of extent of this kind of protection, optimization of law structure and convenient law application. A unified priority system would be advantageous to full exertion of priority function and help the legislation to be scientific, rigorous, economical and reasonable.The conflict between legislation of the unified priority system and the existing real right system, in particular the guarantee real right system in our country's civil law and the coordination of this kind of conflict need to be earnestly treated. As for the question of non publication of priority right, this article thinks, on one hand, real right uses the occupancy or the register as its way of publication. This is the general principle not without exceptions. Moreover the legal rule itself has also the meaning of publication. On the other hand, for the transaction security it must be considered to restrict the effect of priority appropriately in order to ease the conflict between priority and publication request. As for the question of fusion of priority system with our country's present guarantee real right system, this article advocates the plan, according to which the hypothec, the pledge, the lien and priority exist side by side in order to maintain the stability and continuity of the present concept and system of guarantee real right. The hypothec and the pledge belong to the guarantee real right by contract, the lien and the priority to the legal guarantee real right. As for the question of positioning of priority and guarantee real right in their concurrence, this article also makes a preliminary exploration.In all of the projects for drawing up the real right law, the "Suggestion to the Draft of the Chinese Real Right Law" by Professor Wang Liming and the in August 2004 by the National People's Congress law working committee revised draft of real right law stipulated exclusively the priority system. This article compares and evaluates based on the above research the both texts and is of the opinion that the first text absorbed the legislation experience of foreign countries like Japanese civil law well, combined this with real right lawmaking practice in our own country and so can be made the prototype for the priority system legislation for its accurate concept, scientific classification, integral structure as well as rigorous rule design. This article offers proposals for its further consummation, too.This article holds that the unified priority system legislation has in our country not only its realistic necessity but also the conditions regarding experience and knowledge supply. In the course of the legislation of real right and civil law and in accordance with our country's practice it is a feasible choice to stipulate an integrated priority system.