| Article 231 of the property law stipulates that "the chattel with lien of creditor shall belong to the same legal relationship with the creditor’s right,except for the lien between enterprises." This proviso is the legislative expression of a commercial lien.As far as the legal provision is concerned,the particularity of commercial lien in the property law is embodied in two aspects: one is that it occurs between enterprises;the other is that it is not subject to the restriction that chattel and creditor’s right belong to the same legal relationship.However,considering the value goal of commercial lien to maintain merchant’s credit assiduously and to ensure the safety of transaction,as well as the objectively required delicate supporting specifications,it is too heavy for the simple proviso in article 231 to bear,leading to the confusion in judicial application.Thus,this paper intends to summarize the particularity and value of commercial lien on the basis of the comparison of commercial lien in foreign law,and rationally reconstruct the value and particularity of commercial lien in China from the following three aspects: the standard of establishment,the correlation and ownership of subject matter.The paper consists of five parts:The first part briefly introduces the typical cases of commercial lien and summarizes the controversial points.The disputes mainly focus on the following specific legal issues: according to what standard to establish the commercial lien,whether the establishment of the commercial lien has the requirement of correlation,whether the commercial lien can be established on the chattel of the third party,and whether the creditor’s exercise of the commercial lien is not subject to the rule of "not in conflict with the creditor’s obligations".The second part mainly expounds the particularity and value of commercial lien.Through the combing and comparison of legislation cases of the commercial lien in Germany,Japan,Switzerland and Taiwan area carding and comparison,This chapter summed up the particularity of commercial lien compared with the civil lien in three aspects: the nature of the commercial lien property,applicable condition,the correlation,and further put forward the core characteristics of the commercial lien starting from the function of its legal system,namely,allowing the interaction application in "creditor’s right" and "lien" in order to maintain the overall balance of interests formed in the continuous commercial transactions between business subjects.This particularity is also the embodiment of the commercial lien system’s pursuit of commercial law’s own efficiency,convenience and safety value.The third part mainly reflects on the subject of commercial lien legislation in our country.First of all,it is expounded that the current legislation only adopts the subject standard of "enterprise" to establish the commercial lien,which is unreasonable in both theoretical basis and practical application.As far as jurisprudence is concerned,the subject of commercial lien is limited to enterprises,which limits the scope of application of commercial lien.Moreover,the establishment standard of commercial lien only according to the subject is inconsistent with the function of commercial lien system and deviates from the core value of commercial lien.In terms of specific application,it is against the principle of fairness to stipulate different legal consequences only by taking identity as the standard,which producing distinct legal consequences of different subjects or even the same subject.In view of this,it is suggested that commercial liens should be established by behavior standard instead of subject standard in the future.Secondly,this paper expounds the dilemma of identifying "business behavior" in Chinese judicial practice.On the basis of drawing lessons from foreign legislative experience and combining with the research on the definition of "business behavior" in China’s academic circle,this paper proposes to adopt the concept of business behavior and further define the behavior standard of commercial lien as "mutual sustainable business relationship".The fourth part is the reconstruction of the correlation of commercial lien.Firstly,it states the lack of solid theoretical foundation to clear up the correlation of commercial lien.By comparing the civil lien system,it can be found that the same legal relationship between the lien and the creditor’s right provides the legal basis of the priority to be compensated as the legal security right.In contrast,China’s commercial lien completely breaks the restriction of implication,which violates the principle of legislative fairness and the principle of overall transaction security.Secondly,it discusses the legal risks induced in practice when the implication standard of commercial lien is discarded,including the right conflict between creditors,the damage to the legitimate interests of the debtor and the owner of the the retained property,and the inducement of malicious lien and even fraudulent behavior.In view of this,it is suggested that future legislation should restrict the implication of commercial lien.Finally,by referring to the the "commercial behavior" as restrictive condition in foreign legislation,it is clearly required that the commercial liens in China shall be established and on the basis of "mutual sustainable business relationship" between the the retained property and the secured creditor’s rights.The fifth part mainly discusses whether the commercial lien can be established on the third party’s chattel.Firstly,it analyses the theoretical dispute of the creditor’s lien on the third party chattel.Based on the differences in general constitution,application field and judgment of "bona fide" between the lien institution and the bona fide acquisition institution,clarifies the theoretical deficiency of the bona fide acquisition of lien,that is,the bona fide acquisition institution cannot be fully and directly applied to the creditor’s lien on the third party’s movable property.Secondly,explore the way of the creditor’s personal property in the civil lien.Although the institution of bona fide acquisition cannot be directly applied to the lien institution,it is still justified to establish the lien on the chattel owned by the third party,which can be summarized into two ways: firstly,when the creditor possesses the chattel of the third party due to the debtor’s performance of obligations to the third party,the creditor can directly restrain the chattel.Secondly,when the creditor possesses the chattel of the third party not through the debtor’s performance of the obligation to the third party,the creditor may exercise the lien on the chattel by analogy of bona fide acquisition.Finally,it is proved from the view of interest balance,the two ways of creditor’s lien on the third party’s chattel are not feasible in commercial lien,and that the third party’s chattel cannot constitute the object of commercial lien. |
PDF Full Text Request