| Under the background of integration of civil law and commercial law,China shall pay attention to demands of cmmercial law.The commercial legal system shall be consummated and develop under the principle of fairness oriented of civil law.Firm lien,as a statutory security right with stronger effect than mortgage and pledge in China,plays an important role in encouraging market transaction,protecting commercial credit and improving transaction efficiency.Notwithstanding the Article 448 of the Chinese Civil Code is construed as the provision of the commercial lien in China,it cannot support the framework of this important system due to its shortness and thereby resulting in academic debates and difficulties in the application of judicial practice.This article starts with the concept of the firm lien,then compares the civil lien,the commercial lien with the firm lien and analyses the distinctions among them.After that,this article analyses relating issues on subject,object and implicated relationship of the firm lien followed by the proposal of perfecting the composition system.This article is divided to four parts as follows:The first part consists of the introduction of the origin of the civil lien,commercial lien and firm lien,analysis of the distinctions of these three concepts and introduction of the rules of the firm lien and relating cases in China.This part demonstrates that the implicated relationship is the most substantial difference among three types of liens mentioned above and indicates the issues on the firm lien to be solved.The second part discusses scope of the firm lien subject.This part begins with introduction concepts of "firm" and "trader",then discusses the subject eligibility of"firm" and "trader",and analyses advantages and disadvantages of those two concepts.Additionally,this article involves the development of individual industrial and commercial households and rural usufructuary household,suggesting those two types of entities should be included in the subject scope of the firm lien.The topic of the third part named "object composition of the firm lien".This part conducts research on whether the registered securities is one of subject types of the firm lien or not and recognizes the subject eligibility of registered securities.After explanations of Japanese legislation on real estates and the priority right of construction contractor in China,the point of view that the firm lien cannot be established on real estates is put forward.This part ends up with the discussion on "whether the creditor has the right to enforce the firm lien on the property owned by the third party" and claims the third-party's property shall not be the subject of the firm lien except for special circumstances.The relevant issues of implicated relationship constitute the fourth part which is separated into three pieces containing the particularity and importance of the firm lien,the explanation of Article 448 of the Chinese Civil Code and Article 231 of the Property Law concerned with requirements of implicated relationship.This part also includes the discussion of the standard of implicated relationship and explains why "operate continuously" can be the standard of implicated relationship of the firm lien.The last part involves suggestions on the improvement of the system of the composition of the firm lien,including the scope of the subject and object of the firm lien as well as reconstruction of implicated relationship. |
PDF Full Text Request