Study On The Commercial Lien

In China, the first time of commercial lien system’s appearance comes from the proviso of article 231 st on “Property Law”, is just an exception clauses of civil lien, on rules apply also choose to invoke "Property Law" provisions for the civil lien, showing that the concept of commercial lien is not explicit, the rules are not clear and cause chaos in practice. With the frequent activities of commercial transactions increase and diversification, the unsound and imperfect existing laws and regulations make commercial lien can not play the role of ensure civil fairy, guarantee the safety and convenient of transactions and maintain the commercial credit in commercial activities, so it is only in legislation but also in the judicial practice, the in-deep study of commercial lien is urgent.There are four parts about the discussion of commercial lien in this paper. Part one is the basic theory of commercial lien. Starting from the historical origin and the legal connotation of the commercial lien, clarified the difference between the commercial lien and related concepts such as real property pledge and the plea of simultaneous performance, and make a simple analysis on the value and function of commercial lien, such as achieve judicial fair, promote the transaction’s security and quick, maintain commercial credit and etc. In the last section of this chapter, the paper introduces the foreign legislation from different countries of the common law system and the continental law system.The second part is the study on the comparison about the constitutive elements of commercial lien and civil lien. At first, this paper introduces the basic elements of civil lien and commercial lien, after that this paper compare the two from their subject, object, implicated relation and so on. Through the study on the theory of implicated relation, learned that the main difference between civil lien and commercial lien is that the civil lien require the retained property and the credit shall belong to the same legal relationship, while the commercial lien doesn’t have this requirement.The third part mainly discusses the specific provisions of commercial lien in our current legislation and the controversy the commercial lien faced, including: whether individual industrial and commercial households, table see businessmen, lease-holding rural households can apply as the subject; whether the real estate, securities and non-commercial matters can be the object of commercial lien; whether non-legally acquired, following income can become a guaranteed credit, and the other dispute about the mode of acquisition such as assignment of creditor’s rights, bona fide acquisition and so on.The last part is the consummation of our country’s commercial lien system. About the specific improvement, we should add the subject, increasing securities as the object, make clear the definition of implicated relations, and add the restrictions on the establishment of commercial lien, so that can realize the legislative purpose and value of the commercial lien system, and promote the business can have a prosperous, secure and efficient development.