The Application And Validity Of Lien

The lien,in short,is that the creditor retains the debtor’s property and he is entitled to lien the already lawfully possessed movable property of the debtor to guarantee the realization of his claim.As a legal security right,the lien is born in accordance with the law which does not require parties to make too many agreements in advance.Therefore,compared with other approaches to realizing the creditor’s rights,the lien has the advantage of convenience and cost-efficiency.Therefore,under many circumstances in practice,it is an important approach for the realization of creditor’s rights.Chinese Guarantee Law initially stipulated the lien system but also left a lot of blanks and defects because of the constraints imposed by the economic and social conditions.The promulgation of the Property Law in 2007 has to some extent made up for the shortcomings and gaps of many lien systems,but it has also brought many new problems.After many years’ practice,some hidden problems have gradually emerged.There are many controversial issues regarding the applicable premise of the lien,the effectiveness as well as the scope of application.In the applicable premise,the object scope of the lien is limited to “movable property” while this leads a problem in practice which needs to be redefined.In the ownership of the retention,the definition of the Property Law is not clear,so that there are different interpretation paths in practice.In the case that the retention is owned by a third party,how to protect the interests of the creditor has become an urgent problem to be solved.“The same legal relationship” as a constituent element of the lien has led to many kinds of doctrines,opinions.Thus,it is necessary to take the words of the people,and take the essence and leave the dross to generally summarize.In the scope and effectiveness of the lien,in order to prevent the abusive application of the lien,appropriate restrictions should be imposed to a certain extent.It should take protecting the creditor’s claims without excessively damaging other relevant persons’ interests into consideration.Based on the lien system of the Property Law,this article applies comparative analysis,legal interpretation and inductive analysis to discuss the systemization of the lien system and propose solutions to related problems.This article is divided into three parts:The first part analyzes each of the application premises of lien.At the beginning,it analyzes the object scope of lien under current law and discusses the possibility of establishing a lien on securities.Secondly,it defines the tenure of lien and analyzes the feasibility of applying lien by a bona fide on the movable property of the third party.Finally,the issue of ‘the same legal relationship’ is summarized.The second part discusses the scope of application of lien.Firstly,the scope of application of the lien under Article 84 of Guarantee Law is discussed and the legislative objectives and defects behind it is explored.Secondly,given that the Property Law expands the scope of application of liens,this part would analyze each of the scope of application of liens.Finally,the legitimacy of the expansion of liens to all kinds of creditor-debtor relationship would be studied.The third part is to study the effectiveness of lien.Firstly,a brief overview of the effectiveness of liens and a description of the legislation choices of different countries regarding lien would be discussed.Then analysis of the dual effects of domestic lien system,including lien and priority compensation would be introduced.Finally,the legitimacy of the dual effectiveness of domestic lien would be discussed again and the possibility of existing a more appropriate path would be analyzed.