What are the conditions for obtaining a lien, and what are the conditions for obtaining a lien

Conditions required to obtain a lien:

1. The subject of the lien is the creditor;

2. The subject matter of the lien is the property of the debtor;

3. The retained property must be movable property;

4. The creditor has taken legal possession of the debtor's movable property.

[Legal basis].Article 447 of the Civil Code.

If the debtor fails to perform the debts due, the creditor may retain the debtor's movable property that is already in legal possession and has the right to be repaid in priority for the movable property.

The creditor provided for in the preceding paragraph is the lienholder, and the movable property in possession is the property in lien.

Article 448.

The movable property retained by the creditor shall belong to the same legal relationship as the creditor's rights, except for the retention between enterprises.

1. The creditor continues to take possession of the debtor's movable property. The occurrence and existence of the lien is conditional on the lienholder taking possession of the lien property. After the lien is established, if the lienholder loses continuous possession of the retained property, the lien shall be extinguished.

However, if the lienholder temporarily loses the property in his lien due to the tortious act, and the lienholder regains possession and regains the right of possession, it does not constitute a loss of possession, and the right of retention may still be enforced.

2. The debtor has not fulfilled the debt within the grace period. Before exercising the right of retention, the lienholder shall notify the debtor to perform the debt within the grace period. The lienholder and the debtor shall agree on the period for the performance of the debt after the property is retained; If there is no agreement or the agreement is not clear, the lienholder shall give the debtor a period of more than 2 months to perform the debt, except for movable property that is not easy to keep, such as fresh and perishable.

3. There are no statutory or agreed circumstances that hinder the realization of the right of lien. The exercise of the rights of the lienholder after retaining the debtor's property shall comply with the provisions of the law and the contract. If the creditor's retention of the debtor's property is contrary to public order or good morals, or contradicts instructions given by the debtor before or at the time of delivery of the movable property, or is in breach of the creditor's obligations, the creditor may not exercise the lien even if the debtor delays the performance of its obligations.

1. Conditions for the acquisition of a lien.

1) The creditor shall take possession of the debtor's movable property in accordance with the contract. Possession of the debtor's movable property is an essential element for the establishment of a lien. This element can be analysed from three aspects:

First, the subject of the lien is the creditor. If the debtor's property is not in possession in accordance with the law, the right of retention shall not be exercised; However, not all legal possession of other people's property can establish a lien, if there is no reason for the administrator to occupy another person's property, although it is lawful possession, but the right of retention shall not be established; Only creditors have the right of retention for claims arising from custody contracts, transportation contracts, and processing contracts. Second, the object of the lien is the debtor's property.

The property in the possession of the creditor must be the property of the debtor, and the property not owned by the debtor cannot be liened. Third, the property of the lien must be movable property. The creditor takes possession of the movable property of the debtor in accordance with the contract, and if the debtor fails to perform the debt within the time limit agreed in the contract, the creditor has the right to retain the movable property.

For example, a construction contract, in essence, is also a processing contract, but the contractor shall not retain the building.

2) The occurrence of the obligatory right is related to the movable property. The so-called implication relationship means that the creditor's lien on the movable property and the debt arise on the basis of the same legal relationship, such as a processing contract, where the contractor has the right to retain the processed and customized goods delivered by the customizer because the customizer does not pay the processing costs. If the movable property is not related to the creditor's right, a lien cannot be established.

In other words, the lienholder may not use the rights of this contract to exercise the security of the lien against the subject matter of other unrelated debts.

3) The debt must have expired. If the creditor's right has not yet reached the repayment period, then the debtor is in a state of consciously performing the contract, and it is unknown whether the debtor consciously repays the debt on time. Only when the debtor still fails to perform its debts after the repayment period of the creditor's rights has expired, can the creditor retain the movable property of the debtor in its lawful possession.

At the same time, in a bilateral contract, if the party in possession of the property of the other party fails to perform its own debts, it cannot claim the exercise of the right of lien even if the debt has expired. If the contractor in the processing contract has not completed the custom-made matters, it shall not claim the right of retention.

Legal Analysis: The condition for obtaining a lien is that the claim is validly existent; movable property of the debtor that is already in the legal possession of the creditor; The property is not a property that is legally prescribed or agreed upon by the parties and shall not be retained; and the debtor's non-performance of its debts as they fall due.

Legal basis: Civil Code of the People's Republic of China

Article 4: If the debtor fails to perform the debts due, the creditor may retain the movable property of the debtor that has been lawfully possessed and has the right to be repaid in priority.

The creditor provided for in the preceding paragraph is the lienholder, and the movable property in its possession is the property in the lien.

Article 448:The movable property retained by a creditor shall have the same legal relationship as the creditor's rights, except where there is a lien between enterprises.

Article 449:Movable property that is provided for by law or agreed by the parties must not be retained in custody.

Article 450:Where retained property is divisible, the value of the retained property shall be equal to the amount of the debt.

The acquisition of a lien shall be subject to the following conditions:

1. The creditor must legally take possession of the debtor's property in accordance with the contract, and the subject matter of the lien is limited to movable property.

2. The creditor's claim must be implicated in the debtor's movable property in its possession.

3. The creditor shall enjoy the creditor's rights and have reached the repayment period. In addition, a lien can be obtained in good faith.

Legal basis] According to Article 108 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the Security Law of the People's Republic of China, the creditor may exercise the right of retention in accordance with the provisions of Article 82 of the Security Law, and the creditor may obtain the right of retention in good faith when the creditor is in lawful possession of the movable property delivered by the debtor, and does not know that the debtor has no right to dispose of the movable property.

1. The creditor has legally taken possession of the debtor's movable property. A lien on the debtor's movable property can only be created if the creditor acquires de facto possession, control or dominance. The right of retention is established and subsisted by possession and extinguished by loss of possession.

As for the mode of possession, it can be direct possession, auxiliary possession and indirect possession, but mere possession is not possession, and a lien cannot be established.

2. The movable property in the possession of the creditor belongs to the same legal relationship with the creditor's rights. The same legal relationship means that the retained property should belong to the same civil legal relationship as the creditor's rights and debts formed by the creditor's rights, and the most common is the creditor's rights and debts relationship arising from the contract.

3. The debtor fails to perform the debts due. If the repayment period of the creditor's rights has not expired and the debtor is still in a state of consciously performing the contract, it is impossible to judge whether the debtor can pay off the debts when due, so the lien cannot be established. If the creditor takes possession of the debtor's property and allows a lien to occur before the repayment period of the debtor's claim, it will inevitably be tantamount to forcing the debtor to pay off the debt early.