On The Perfection Of The Legal System Of Commercial Lien In China

The Commercial Lien system in China has not been substantially revised from the Property Law in 2007 to the Civil Code in 2020,until the Interpretation of the Supreme People’s Court on the Application of the Civil Code of the People’s Republic of China Concerning the Security System made further provisions,but there are still shortcomings in judicial practice.In Chapter I,the empirical analysis of cases is used as an entry point to summarize the problems of the Commercial Lien system in China 1,the applicable subject is limited to enterprises,and other subjects fail to become the applicable subject of Commercial Lien.2、The limit of the implication between the main claim and the lien is unclear,and the definition of "going concern" is vague.3.The creation of a lien that negates the commercial lien on the property owned by the third party.4.There is a conflict of application with the maritime lien system.In Chapter Ⅱ,the problem that the subject of commercial liens is limited to enterprises is addressed.Although the concept of "merchant" is not suitable for replacement in the end,it is a comprehensive way to identify commercial subjects through formal and substantive conditions.By exploring the feasibility of replacing the concept of "enterprise" with the concept of "merchant",a new solution is provided for the expansion of the applicable subjects of Commercial Lien from enterprises to individual entrepreneurs,large-scale agricultural operators and professional service institutions.Chapter Ⅲ clarified that the limits of the implication between the principal claim and the lien still need to emphasize that the creation of the principal claim and the acquisition of possession of the lien arise from the going concern activities between the creditor and the debtor.This includes further explaining and identifying the meaning of "going concern" and the types of business activities it encompasses,and only if the specific types of business activities and the reasons for the acquisition of possession of the principal claim and the lien are met can the proposed relationship between the two be found to exist..Chapter Ⅳ discussed that although the present judicial interpretation denies the commercial lien,it still restricts the return of the third party’s claim.Therefore,from the point of view of the security of commercial transactions and the protection of trust interests,the paper introduces the doctrine of commercial appearance,brings the reason of the third party’s possession into the scope of the third party’s risk control and control,divides the risk liability reasonably,and makes reasonable optimization and application to the third party’s possession while protecting the creditor’s "bona fide" lien behavior.In Chapter Ⅴ,the concepts of maritime lien and commercial lien are clarified.Although the use of a ship as the subject of a lien may give rise to competing claims,commercial liens and maritime liens are not entirely inclusive,and the choice between commercial liens and maritime liens in practice may ultimately lead to disputes over the subordination of claims.Therefore,it is appropriate to distinguish between a broad and a narrow definition of maritime lien Maritime lien in the narrow sense is limited to shipbuilding contracts or ship repair contracts and is strictly limited by the "same legal relationship".The principle of "lex specialis prevails over lex generalis" should be followed as a prerequisite for the application of the two,and the conflict between the application of the two can be solved by taking into account the subordination of the two to compensation.