Study On The Disputes Of Commercial Lien

There are only11articles on lien in Chinese property law, which are less thanregulations of real rights for security. Commercial lien is just an exception of the civillien on Chinese property law. As a statutory way of guarantee, lien is different frommortgage and pledge. Arising from commercial transactions, commercial lien hasunique value on promoting commercial credit and improving trade efficiency. But thereis not enough theoretical research on commercial lien in our country, which leads tomany disputes on the understanding and application of commercial lien.First of all, this paper studied the legal definition and essence of commercial lienand then analyzed controversies about the subject and object of commercial lien. Lastly,researched the expanded application on commercial lien and analyzed its rationality andshortcomings.There are four parts in this paper. Part one is the basic theory of commercial lien.This part studied the source and the legal nature of commercial lien, comparingcommercial lien with civil lien on their source, definition, legislation and effect. Andthen come to the conclusions that commercial lien is different from civil lien on itsfunctions and value, the business relationship is the core element of commercial lien,the aim of commercial lien is the balance of interests during the continued commercialtransactions.The second part is the research on the subject of commercial lien. This partanalyzed the subject of commercial lien in Chinese property law. The author holds theview that "enterprise" is not a legal concept and its scope is different from “merchant”,so it can not replace the concept of “merchant”. Seeking profit and operation are thecore characteristics of “merchant”. Considering the present situation of the commercialsubject in China, individual business and profit-making public institutions should be thesubject of commercial lien and lease-holding rural household could be the subject ofcommercial lien after registration.The third part is the research on the object of commercial lien. The author holds theview that securities could be the object of commercial lien, except inscribed securities,which can improve transaction efficiency and protect transaction safety and alsoincrease the chance of realization of creditor’s rights. If real estate becomes the objectof commercial lien, it will violate the current regulation of our law and the principle of proportionality. The circulation of the accommodation things is restricted or prohibitedby law, and the creditor cannot realize his rights with its exchange value, so it shouldnot be the object of commercial lien.The fourth part is the research on the expanded application of commercial lien.Firstly, this part summarized the theory on implications for relationship in civil law,analyzed the advantages and disadvantages on the expanded application of commerciallien, and then come to the conclusion that we should limit the expanded application ofcommercial lien by “business relation”. Secondly, this part analyzed the legislation andtheory on bona fide acquisition of commercial lien, and then draw a conclusion thatcommercial lien could not only acquired by bona fide, but also by mala fide incommercial practice. Lastly, this paper studied the specific expansion of commerciallien, and analyzed whether the commercial lien could be applied to the debt ofnegotiorum gestio, unjust enrichment, contracting negligence and torts.