The Construction Of A Theory Of Priority System In Our Country

The priority system originating from Roman law is an important part of civil law. Pursuing the essential justice and the harmonious order are two value targets of the priority system. The priority, based on the interest balance and social commonweal and social policy, endows with the privilege of preferential repayment to the creditor, and for this it explodes the equal status of creditor and gives more powerful protection to some special creditor’s right. It is in line with the conception of modern civil law.The actual civil law of China has not established uniform priority system. China protect special social relationship mostly by rules in special law and repayment order. The types of priority is not enough that makes many special credits out of the protection of law. It is because China has not established a uniform priority system and there is not a uniform conclusion of the notion, the nature and other basic theories of priority. Scholars do not compromise with each other. According to the situation, The thesis mainly introduces the basic theory of priority. Then it puts forward some legislative suggestions on constituting priority system in our country by making comparative study on the priority of several foreign countries.The thesis consists of four Parts besides introduction and conclusion.The first part is the conception and the nature of priority. This Part introduces the conception, the categories, the nature and the characteristics of priority. There are several categories of priority. Most countries divide priority into general and special priority based on its object. Priority is a substantive right which has the attribute of real right guaranteed. It is stipulated by law. The priority has the generic attribute of guaranteed right, such as the character of property right, the character of value right and the character of guaranteeing. Compared with the other assure right, the characters of priority is embodied in its legality, specialty and secrecy.The second Part is comparative study on priority. Referring to other countries’ related legislation, such as French Civil Code, Japanese Civil Code, Italian Civil Code, Germany law and Anglo-American Law. The part takes thoroughly comparative studies on priority. And from this, it summarizes that some countries have established priority systeml, while some countries have not but also have some scattered provisions with regard to priority. So we should not deny the existence of priority.The third Part is the necessity for constituting the priority system of our country. It reviews the priority’s status quo of our country and then analyzes the lack of current legislation. For example, the general priority is not effective enough to defend real right guaranteed. The types are few. The applicability of priority is quite weak. And then it analyzes the necessity of establishing priority system in our country. Priority has its unique value and function. The status quo of China’s society need to establish priority system. The establishment of priority system is to improve the needs of our country’s legislation. The security interest system in our country can not completely play the rule of the priority system. The purpose of priority is in line with the trend of modern civil law.The fourth Part is the legislative suggestions on constructing priority system in our country. Based on commenting our country’s situation, some legislative suggestions on establishing priority system are put forward for compensating for vulnerability. It suggests we set up the priority system by a lawmaking project that combines the general law making and the special law making. The general rules of priority are put in the Civil Code. The Maritime Line and the Aircraft Line are still put in the Civil Code, add priority into our country’s security interests which include mortgage, pledge and lien. The four rights together consist the real right guaranteed system. It makes some suggestions on the construction of priority according to the principles of determining the kinds of priority. It suggests that civil priority in the Civil Code should consist of general priority, special priority of movable and special priority of immovable. Add tax priority, the priority of personal insurance, intellectual property priority and the priority of principal and interest on individual savings and deposits in the special law. It analyzes several cases of priority of foreign legislation which do not have to be ruled in China’s legislation, such as the sale of movable and immovable property priority; priority of agro-industrial labor; priority of hotel operator; priority of carrier; priority of public personal security. In the end, it discusses how to balance interests when the priority is exercised. It notes that the protection of the priority about public interest and privacy should be balanced, and then it makes specific arrangements for the sequence of the civil priorities provided in the Civil Code.