Research On The Constitutive Requirements Of Chinese Commercial Lien

Lien system legislation is widespread in many countries, our country belongs to the combination system of civil and commercial codes. the general rules of the civil law established the system of lien for the first time, contract law and security law has proposed regulations for special contract of lien, property law article 230, article 231 made a further the lien provisions:"the debtor fails to perform the debts that are due, the creditors may lien has legally possessed the debtors movables, and shall have the right to the chattels seek preferred payments. The chattels taken as lien by the creditors and the obligees rights shall belong to the same legal relationship, except for the lien between enterprises." Pursuant to expand the scope of lien and commercial lien is also reflected in the law for the first time, but only on the subject of the commercial lien and implicative relationship referred, no rules of the specific constitutive requirements of commercial lien. Commercial lien as in commercial trading activities to assure the safety of transaction, should have many differents between general civil lien, this paper makes a analysis of its constitutive requirements, in order to help improve the system.The first part mainly analyses the constitutive requirements of existing commercial lien system in China. Through the comparison of related law, the Chinese referee online case analysis, it is concluded that subject scope is not clear, the scope of the retained property is not clear.the implicative relationship is not clear.This three major problems set on the basic framework for the whole paper.The second part is the research on camparative law. The lien system in civil law system and Anglo-American law system related, the key is the lien in civil law system, based on the three problems are classified in the first part,analysis the law of France, Germany, Japan, Switzerland and Taiwan area of our country. We should focus on the law of Switzerland and Taiwan area.The third part is the suggest for the subject of the lien. Commercial lien as real rights for security in commercial activities, the subject should be engaged in commercial activities, the word "enterprise" obviously cannot cover all the commercial subject range, individually-owned businesses and leaseholding farm households, and the non-profit institutions shall be classified as commercial lien subject range.The fourth part is about the object elements. In the unity of civil and commercial legislation framework, according to the object of civil general lien elements, chattel apply to commercial lien, because of the frequent complex business transactions, securities, real estate is frequent,will be completely applicable to in business activities, for the safety of deals, "the property of the debtor" should be expansionary application.all the retained property ownership is not only limited to the debtor, the third person all of the debtor, creditors legitimate possession of the property through the trading are applicable in commercial lien.The fifth part is the suggests for the special implicative relationship.Commercial lien broke the implicative relationship between the retained property and the creditor's rights, but if we don't limit the relationship may easily caused the abuse of the commercial lien. We should draw lessons from foreign rules, the occupation of the property and the creditor's rights should all based on the commercial relationship.