On The Applicability Of The Right To Lien

The applicability of Lien is always a controversial topic.Calls for expanded lien the applicable scope of the community of growing,scope of application of lien presents the trend of expansion.But this conflict with features that are characteristic of lien and its priority.Now our country is ready to make the civil code,the problem we are facing with is how to define the applicability of lien.The first section puts forward some questions.Firstly,we should define the concept of lien,through the concept of lien preliminary define the applicability of lien.Secondly,analyzing the feature of the lien,such as effectiveness of property right,real rights for security,statutory,etc.Especially the strong priority makes it is not suitable to expand the applicability of lien.The second section discusses the history of Lien and lien legislation mode in the other countries.The historical evolution of the Roman law lien system as the breakthrough point,focusing on the effect evolution.Combining with the continental law system in the civil law countries to comparative analysis on the lien.Our country's mode on lien is the lien of real right characteristic.It was stipulated in the Property law and has the right to lien and claim priority.The third section discusses the positive applicability of lien.Firstly,the range of object of lien should contain movable property,real property and securities.The object of lien hasn't to be marketable.However,lien cannot be established on the object that does not belong to the debtor.Secondly,the range of debt of lien is no longer limited to the contract.The fourth section discusses the negative applicability of lien.In the situation that loss of possession lead to extinguishment of lien,there should be discrimination between the different reasons that lead to the loss.And the same to guarantee that provided by the debtor which should be accepted by creditor.Lien of the negative applicability includes the two sides agreed to rule out a lien,and some other disgraceful consideration in violation of the situation.The fifth section discusses some advice to optimize the applicability of lien.Separating the right of lien and claiming priority to establish the concept of independent lien rights.