Research On Commercial Lien

Article231of the Property Law of the People’s Republic of China (hereinafterreferred to as the property law) stipulates the lien between enterprise, law theoryregard it as the the first provision of commercial lien. However, the commercial lienis different from the lien between enterprise. and the application of the commerciallien is invoked in the property law of the provisions of the civil lien. So, the statusquo of commercial lien presents a condition of the definition is unknown and theprovision is imperfect. With the development of business transactions anddiversification, the improvement of the business rules become a important and hottopic in the field of commercial law theory. Commercial lien is an important systemof the commercial law, whether use the legislative model of the unity of civil andcommercial laws or use the legislative model of division of civil and commercial law,beside the rule of civil lien, there is the provision of commercial lien. Thedevelopment of the commercial lien system in China started relatively late, leading tothe consequences of the provisions of the commercial lien is not perfect. So, under thebackground of the social and economic prosperity, on the basic of summing up thedeficiency of the existing legislation, compare and analysis the Chinese and foreignlaw’s lien, become the way of perfect the commercial rules.Lien is divided into civil lien and commercial lien, and the two are different inorigin. The earliest civil lien rules, can be traced back to Roman law’s maliciousdefense and fraud defense of refuse to pay. While commercial lien is originated fromthe lien stipulated in the merchant organization law in the middle age. The differenttype of the lien, influence the provisions of lien of modern countries differently.Influenced by lien in Roman law, there has the debt lien, the lien in German law andJapanese law can be vested in the debt lien. And on the base of receiving the lien ofmedieval merchant organization law rules, there has the real rights lien. Real rightlien, the lien on the Swiss civil law is the real rights lien, this kind of lien is followedby the commercial lien in China and Japan.The perfection of Commercial lien is beneficial to increase the efficiency of commercial transaction, to achieve the fairness in private law, is helpful to completethe business rules. In accord with the Numerus Clauses principle, the improvement ofcommercial lien rules shall be the following four aspects. First, the body of thecommercial lien shall be the merchant. Change the regulation of "lien betweenenterprises" of our law, when the commercial lien establish between businessmen orwhen one party is the merchant, the law should admit the establish of commercial lien;Second, the object of commercial lien should be personal property and securities; ourproperty law only regulates the personal property, and there are no rules for thesecurities is the object of lien, and in reality bring securities into the scope of theobject of commercial lien is necessary; Third, refine the content of the commerciallien, explicit the creditors’ and debtors’ rights and obligations; Fourth, theestablishment of the commercial lien is restricted. Complying with the public orderand moral principle, this principle is the basic principle of our civil and commerciallaw. As the important system of civil and commercial law, the establishment ofcommercial lien must comply with it. The possession of the retained property ofcommercial lien, creditor must be based on the business relationship, that is the lawlegal fiction the implicated relation of civil lien in commercial lien rules. Theprecondition of creditor occupy the personal property and securities of debtor is therehas on reason that creditor can not be attributed. Refers to the consensus betweencreditor and debtor which agreed exclude using the rule of commercial lien on somekind of object, law should certain it. The rule of commercial lien is the specialregulation of private law, though it belong to the statutory real right, the law shoudadmit the agreement.