Research On Lien

Since the “General Principles of the Civil Law” established the lien system in1986, lien system has been more and more improved through the “Guarantee Law”,“Judicial Interpretation of the Supreme People’s Court on Some Issues Regarding theApplication of Security Law” and "Property Law". But it still remains uncertain placein the interpretation and application of specific provisions. In this paper, some of theissues will be discussed.The first section discusses lien legislation mode on continental legal system andour law. There is difference between lien of the real right characteristic and lien of thelegal right characteristic. Like differences in the effectiveness, lien of the real rightcharacteristic has the right to lien and claim priority, when lien of the legal rightcharacteristic only has the right to counterplead. Then the paper introduces legislativeevolution of lien in our country and concludes that our country’s mode on lien is thelien of real right characteristic.The second section discusses the range of object of lien. The object of lien hasn’tto be marketable; lien can be established on the object that does not belong to thedebtor; the lien on real estate should be arranged in the contract.The third section discusses the relationship between the debt and object of lien.“The same contract relationship” uses the causes of debt to limit the applicable scopeof lien.“Implicated relations” is complicated in theory and interpretation. Comparedto those provisions,“the same legal relationship” stipulated in the "Property Law" is more appropriate. The lien between enterprises is much close to Commercial lien oncontinental legal system.The fourth section discusses the special reasons for extinguishment of lien. In thesituation that loss of possession lead to extinguishment of lien, there should bediscrimination between the different reasons that lead to the loss. And the same toguarantee that provided by the debtor which should be accepted by creditor.