On The Retention Of Debts And The Construction Of The Relevant System Of The Civil Code In The Future Of China

Since the promulgation of the property Law of the people's Republic of China(hereinafter referred to as the property Law)in 2007,it has greatly amended the relevant provisions on lien in the guarantee Law of the people's Republic of China(hereinafter referred to as the Guaranty Law).The biggest difference is that in order to protect the creditor's claims,the application of lien is extended to all claims.However,with the passage of time and the development of economy,the blind expansion of the scope of application of lien leads to a series of problems in judicial practice,such as abuse of lien,misuse of lien and so on.The root of the problem is that our legislation does not have a claim on it.There is a strict distinction between lien and real right lien.The lien system stipulated in our country's legislation is the lien of the real right of other countries,and does not stipulate the lien of the creditor's rights,which leads to the situation that the lien of the creditor's rights should be applied in the judicial practice.The judge can only apply the lien of real right to the judicial decision,which leads to the dilemma of practice.In order to respond to the demand of judicial practice,through the institutional and theoretical examination of the lien system in the current law and the investigation on the legislative model of the lien in other countries of the continental law system,the conclusion that the lien should be established in our country is obtained.Creditor's right lien refers to the creditor has the right to refuse to pay the property which has been in possession before the relative person performs the debt,but does not have the right to the exclusive direct control of the property.The purpose of the lien on creditor's rights is to urge the debtor to fulfil its corresponding obligations by giving creditors only the right of claim to refuse to deliver on the movable property of the debtor in their lawful possession,It does not upset the balance of interests between creditors and debtors and between creditors and other interested creditors.The main form of lien is lien,that is,to force the debtor to fulfill his debt by lien.However,the realization of claims is secured by a lien.A unique form of lien for non-creditor's rights.Therefore,in order to accurately locate the lien of creditor's rights,we must distinguish it from the lien of real right,and at the same time,fulfill the connection and difference of relevant systems,such as the right of defense,self-help behavior and so on.Through the definition of the concept of lien and related concepts,the essence of lien of creditor's rights is further recognized.In addition,applying the lien of creditor's rights to the controversial cases in judicial practice reflects the unparalleled advantages of lien in solving practical problems.In order to respond to the demand of judicial practice,we should completely correct the mistake of Real right Law and limit the scope of application of the lien of retractive realright by taking advantage of the spring style of compiling the Civil Code.In the future Civil Code,the scope of application of the lien of real right should be reduced and stipulated in the title of Real right.The specific scope of application includes paying labor services to the lien of movable property.Creditors,such as technology,who add value or preserve the value of the lien give priority to repayment.Such as custody contracts,processing contracts,transportation contracts,warehousing contracts,disciplinary contracts,and non-cause management debts.In the future,the lien of creditor's rights should be stipulated in the performance of debts under the General principles of the Law of debts.In this chapter,the scope of application is quite wide,including contract debt,tort debt,unjust enrichment debt and so on.In general,the lien of creditor's rights should have a place in the future debt law system of our country with the advantage of its own system,which should be regarded as the upper concept of lien of real right,and the lien of real right should be stipulated as security right as a special case.