| Lien,as an old form of security interest to secure the payment of debt or performance of other obligation,plays a vital role in people's daily life. However, in the application of existing law, there are many arguments about if lien could be obtained in good faith and set on movable properties owned by a third party, which leads to the failure of effectively exerting the system function of guaranteeing obligee's legitimate interests. The thesis delves into the matter of lien obtainment, hoping to bring positive effect on the understanding and application of existing law and system improvement methods.There are four parts in this thesis. The first part, together with the Property Law,explains the requirements of establishing lien from three aspects, which lays a foundation for the following discussions. Through analyzing the change in the provisions of requirements of establishing lien before and after the enactment of Property Law, it is acknowledged that the Property Law expands the application of the lien. However, having analyzed the cases cited in this thesis, the author observes that there are many inappropriate provisions concerning the requirements of obtaining the lien.In the second part, it digs into the requirement of “the same legal relationship” which is provided in the Property Law. The connotative meanings of standards of “implicated relationship” and “the same legal relationship” are explained in the first, then it analyzes and argues the legitimacy of existing standard of “the same legal relationship” from the perspectives of the obligee, the relationship between obligor and its other obligee(s), and the realization of the lien. Meanwhile, the author believes that in the continuous transport contract, if creditors' right of the carrier and the shipper's right to requesting delivery of goods are based on the same transport contract, they two conform to the requirement of “the same legal relationship”. Concerning the provisions of commercial lien in the Property Law, the author considers to specify the provisions from the subject scope and the relevance standard of commercial lien.In the third part, it argues whether the scope of the property under lien is limited to movable properties owned by the obligor. The opinion that the movable property under lien shall, in principle, be owned by the obligor is widely believed, in which the obtainment of the lien in good faith is acknowledged as well. But the author believes that it does not meet the requirements of obtainment in good faith, and it is hard to judge whether in good faith or not. Meanwhile, the lien and the obtainment in good faith are applied in different fields. Due to the legitimacy of setting a lien on movable properties owned by a third party, the author suggests that the law should be amended for extending the property under lien to movable properties owned by others.In the fourth part, beginning with the object of lien, the author discusses if the movable property as the subject matter of lien shall be transferable, and if valued securities shall be subsumed into the scope of property under lien. The author believes that the subject matter of lien shall be limited to transferrable objects. At the same time, with the social and economic activities being complicated, it is appropriate to make extensive interpretation to the term “movable property”, bringing some valued securities into the scope of property under lien. As for the matter of immovable property being granted lien, the author agrees that there isn't a substitution system of immovable property lien in our existing laws, therefore, it is not necessary to bring immovable property into the scope of property under lien. |
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