The Special Rules Of Commercial Lien

Commercial lien originated in medieval Italian merchant community customary law. China’s legislation of commercial lien lies in the 231st article of "Property Law". This recapitulative article did not specify other special natures besides the implicated relation of the commercial lien, leading to the judicial application of the difficulties and confusion. It also derogates the value of the system itself. From another perspective, this recapitulative article did give space for doctrinal study. Scholars discuss the special rules of the commercial lien extensively. However, in terms of existing theory achievement, researches against the commercial lien are still not deep or comprehensive enough. Therefore, I intend to study the rules of commercial lien through the comparative law research, theory carding, case analysis and other methods. In order to better guide the judicial application of commercial lien rules, I will have a comprehensive discussion on its particularity and a deeper understanding in its formulation of norms. In addition to the conclusion, this paper is divided into four parts.The first part starts with an introduction of a case. Then, it puts forward problems that this paper wants to study.In the second part, through a comparative study on the relevant regulations of Germany, Switzerland, Japan and Chinese Taiwan, I analyze the different provisions in constitution of the elements and the legal effect of the commercial lien between different legislative patterns. Also, I explore the legislative reasons for different legal provisions and I believe this can be a reference to improve China’s commercial lien.The third part introduces the legal rules of commercial lien in the current law. Besides, this part discusses the special value of the commercial lien. Obviously, there is contradiction between the general legislation and the important value of the commercial lien. Therefore, it is necessary to further explain the specific rules of the commercial lien.The fourth part elaborates the commercial lien rules from four aspects-the subject, the object, the exercise and the effect. Firstly, discuss and draw lessons from the unique commercial concepts such as commercial subject, commercial behavior and so on. Then point out the particularity of the constituent elements of commercial lien by comparison with the civil lien. This part focuses on the fiction or abandonment of implicated relation in commercial lien rules. At last, his part analyzes the special effects of the commercial lien.