Analysis On The Reasonable Path Of Creditors' Lien On Others' Property

When there is a transaction relationship between the creditor and the debtor,whether the creditor can establish the lien on the property that doesn't belong to the debtor is controversial in the practice and academic circles.At present,there are mainly two kinds of Views: the restrictively positive opinion and the negative opinion.Through the analysis of the intention of the establishment of the lien system and the effect of the lien,we can see that the negative opinion is contrary to the lien system's original intention.It can not balance the interests of the two parties,and there are also many defects.The theory of restrictive affirmation refers to that the creditor can set up the lien on the third party's property under certain conditions.According to different standards of distinction,it is mainly divided into the theory of the establishment elements of the lien,the theory of acquisition in good faith and the theory of pure protection in good faith.In view of the above three solutions,there are great disputes in academia,practice and comparative law.One is the theory of the elements of the establishment of the lien,"the debtor's movable property" stipulated in Article 230 of the Property Law can be interpreted as "the debtor's owned movable property and the others' movable property possessed by the debtor",and then the others' property can be included in the scope of the elements of the establishment of the lien.After the other elements of the lien are satisfied,the creditor can directly establish the lien on the others' property in law,there are also legislation by this way.However,this solutionhas the defect of "overprotecting creditors",and in some cases,there are also obvious disadvantages of violating the trading order.Secondly,the theory of lien acquisition in good faith has been adopted by many scholars,the main content is that in the case of "other property rights" in Article 106(3)of the Property Law leaving the applicable space for acquisition in good faith,the lien should also be applied to it,which is the same as the mortgage and chattel pledge.The creditor can obtain the lien on others' property through the system of acquisition in good faith,and there are also legislation by this way.However,this theory has also been greatly questioned.The opponents believe that the act of the debtor delivering the movable property to the creditor is not a disposition act,so it does not meet the preconditions of the system of acquisition in good faith applicable to "unauthorized disposition".At the same time,the establishment of the lien is directly generated in accordance with the law,and there is no room for the autonomy of the parties,so they are different.Although some scholars try to construct a channel between the two systems,they assert that the lien system implies the debtor's intention to set up a real right for security,which can be used as a bridge to connect the lien and the system of acquisition in good faith,but this structure undoubtedly misunderstands the meaning of the parties and put the provisions and autonomy of the parties together.Therefore,the way to obtain the lien in good faith is not desirable.Thirdly,it is considered that "allowing the creditor in good faith to establish the lien on others' property" is a concrete embodiment of the legal protection of good faith,which is different with the system of acquisition in good faith.This opinion has certain advantages,which can not only achieve the purpose of protecting the transaction security,but also avoid the connection between the system of lien and the system of acquisition in good faith.However,this solution is limited.Finally,based on the analysis and reference of the three existing ways,we can get a more reasonable way to solve the problem: when the debtor performs its own obligations and performs the obligations for the owner,it can be explained that the debtor has the disposition right stipulated in Article 108 of the judicial interpretation of the security law,at this time,the creditor can directly establish a lien on other people's property.When the debtor doesn't perform its own obligations and theproperty is the possession of the detached object,only the creditor in good faith can establish the lien,and it should be considered as a reflection of the specific protection of good faith by law,which is different from the acquisition of the lien in good faith.In addition,under this problem domain,commercial lien has its particularity.Because commercial lien abandons the restriction of "the same legal relationship",the creditor can not establish commercial lien on the third party's property.