Legal Research On Commercial Lien

Compared with civil lien, commercial lien that arising from commercialtransaction, doesn’t require the things taken as lien by the obligee implicate strictlyrelation to the obligee’s rights. It complies with the principles of the commercialtransaction for efficiency and security. There is a positive significance. Commerciallien is firstly regulated in China by article231of “Property Law of the People’sRepublic of China”, but the elements of commercial lien still need to be improved.From the perspective of comparative law, the paper will analyze legal issues, in orderto contribute to the perfection of the application of the commercial lien in china.In the first part of this paper, the author had done some research on the basictheory of the commercial lien, including its history, the differences among civil lien,legal pledge and creditor’s right lien, the value of commercial lien system, etc. Thepurpose is to clarify the related concepts and interpretation of the value ofcommercial lien, and highlight the significance of the commercial lien.In the second part, from the perspective of comparative law, the author analyzesthe basic types and main characteristic. At the same time, the paper introduces thefirst establishment of commercial lien in China and the legislative defects.Commercial lien need to be suggested according to the foreign legislation andpractice.In the third part, the author interprets the basic elements of commercial lien,including positive conditions and negative conditions. The positive conditions of commercial lien include the subject, object, and the premise of obtaining thecreditor’s right and retained things. In the author’s opinion, the subject ofcommercial lien should be defined for businessmen instead of the enterprise. Theobject of commercial lien should be limited to circulation of materials, includingmovable property and bearer securities. What’s more, the obtaining creditor’s rightand the possession of retained things should not fall in the same legal relationship,but should base on the business behavior. The negative conditions include that thesituation of legal forbiddance and promise between the parties to exclude theapplication of commercial lien. At the same time, the author focuses on the reasonthat commercial lien break through the same legal relationship, the special restrictionof commercial lien, acquisition in good faith of commercial lien and legaleffectiveness. This paper point out commercial lien should be limited by businessbehavior, that is the possession of retained things and acquirement of creditor’s rightshould occur in the commercial transaction. The effectiveness of commercial lienshould be treated differently. Under the normal situation, creditor doesn’t have thepriority in compensation, just have right to deal with. But when creditor dedicates toimprove and keep the value of the retained things, he has the priority incompensation.