On The Determination Of The Relationship Of Commercial Lien Implications

Article 448 of the Civil Code stipula76-tes that "the movable property retained by creditors shall belong to the same legal relationship as the creditor’s rights,except where there is a lien between enterprises." The Proviso stipulates is regarded as a general provision of the commercial lien.As far as the law is concerned,the difference between commercial liens and civil liens is that: First,the principal of the lien is between enterprises.Second,commercial liens are not subject to the restriction of "the same legal relationship".But such a simple Proviso stipulates couldn’t fully bear the weight of the commercial lien system.Paragraph 2 of Article 62 of Interpretation of the Supreme People’s Court on the Application of the Relevant Guarantee System of the Civil Code of the People’s Republic of China limits the scope of claims between enterprises to those that need to "arising from the continuing operation of the enterprise",which is still in the context of requirement that liens between enterprises are not subject to the restriction of "the same legal relationship".However,the specific relationship between claims and the possession of liens remains in the legislative gap.In light of this,this article will discuss how to define the implicated relationship between claims and liens.ChapterⅠexamines the system of commercial liens.Section I traces the origin of commercial liens.The liens are divided into civil liens and commercial liens.The civil lien derives from the malicious defence of Roman law and the right to refuse payment of fraudulent defence.The origins of the commercial lien originated from the customary law of Italian merchant groups in the Middle Ages.Section 2 determines the specific concept of a commercial lien: The creditor who is the subject of the business obtains the right of priority to be paid by indwelling the property be legally possessed based on continuing business activities on the basis of the claim which has been repaid but has not been repaid based on the mutual continuing business activities of the two parties.Section 3 discusses the subject of commercial lien.There are still legal loopholes in the existing legislative expression.The subject scope of commercial lien should include individual business,leaseholding rural households,qualified public institutions and enterprises,so as to improve the system of commercial lien.Chapter Ⅱ: The historical evolution and the classification of doctrines of implicated relationships.First of all,the local history of the implicated relationship is sorted out,revealing the process of change from "implicated relationship" to "same legal relationship" to the current "continuous management".Then,the theory of the implicated relationship of general lien is unfold,and the three implicated relationships existing in the general theory are further analyzed.Based on the discussion of the implicated relationship theory of general lien,the author’s definition of the implicated relationship of commercial lien is derived:when there is a certain internal correlation between the creditor’s paid-off but unpaid creditor’s rights and the obligation of possession and return of the retained property,it should be regarded as a relationship of implication.Chapter Ⅲ clarifies the necessity of exercising the commercial lien as an implicated relationship.Section I reveals that the establishment of an implicated relationship between the claim and the possession of the lien is the key to distinguishing between a civil lien and a commercial lien,which can be concluded that the implication between the claim and the possession of the lien is the core embodiment of the particularity of the commercial lien.Section II discusses whether Article 448 of the Civil Code of the People’s Republic of China completely abandons the element of implication.Although the clause of the proviso makes it clear that the establishment of a lien between enterprises does not require the "same legal relationship" between the claim and the possession of the lien,without any form of restriction,resulting that the creditor may arbitrarily retain the debtor’s movable property in order to facilitate the debtor’s satisfaction of the secured claim.This outcome is totally contrary to the purpose of the legislation.It should be found that Article 448 of the Civil Code of the People’s Republic of China does not completely abandon the element of implication,but rather a relaxation of the implication.Section III proposes to impose the necessary restrictions on the form of the lien to avoid abuse of the lien.Some kind of "the implicated relationship" should be used in place of an exclusion that is not restricted by "the same legal relationship",undering "the implicated relationship" was formerly replaced by "the same legal relationship" ——The correlation between possession of the lien and the claim is defined by some kind of "the implicated relationship".Chapter Ⅳ deals with how to define the implicated relationship of the commercial lien.The conjuration of the implicated relationship shows the immunity of the commercial lien from the implicated relationship,breaking the one-to-one mapping relationship of the civil lien,and not strictly entangled in the correlation between the claim and the possession of the lien,expanding the scope of the subject matter of the lien and increasing the likelihood of commercial claims.Limiting the relationship between the claim and the possession of the lien by "mutual continuity business activities" not only reveals the implications of the commercial lien,effectively avoiding the abuse of rights,but also does not hinder the expansion of the scope of application of the commercial lien,which is in line with the current situation of China’s legislation.