What are the conditions for the establishment of a lien and what are the conditions for the establis

Legal analysis: The establishment of a lien should meet the following conditions: 1. There must be a creditor's rights and debts relationship between the two parties.

2. The creditor is in possession of the debtor's movable property in accordance with the contract. 3. There is an implication relationship between the creditor's right and the creditor's possession of the property, that is, the possession and acquisition of the creditor's right and the subject matter occur on the basis of the same contractual relationship. 4. The creditor's right has reached the repayment period and has not been repaid.

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

Article 447:If the debtor fails to perform the debts due, the creditor may retain the debtor's movable property that has been lawfully taken 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.

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.

Legal analysis: The conditions for the establishment of the lien are: 1. The two parties must have a creditor-debtor relationship; 2. The creditor is in possession of the debtor's movable property in accordance with the contract. 3. There is an implication relationship between the creditor's right and the creditor's possession of the property, and the possession of the creditor's right and the subject matter is based on the same contractual relationship; 4. The creditor's right has reached the repayment period and has not been repaid.

Legal basis: Article 447 of the Civil Code of the People's Republic of China provides that 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 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.

The right of retention refers to the right of the creditor to take possession of the debtor's property due to a contractual relationship, retain the property before the resulting claim is repaid, and sell the retained property in accordance with the law when it has not been repaid within a certain period of time, and receive priority from the price. The following elements are required for the establishment of a lien: (positive element) (1) the creditor is in possession of the debtor's movable property.

The creditor must be in legal possession of the debtor's movable property. (2) The creditor's right has reached the repayment period. If the creditor's claim has not yet reached the repayment period, and its obligation to deliver or return the subject matter in its possession has expired, the right of retention cannot be exercised.

However, the creditor can prove that the debtor is incapable of paying. (3) The possession of movable property and the obligatory right are the same legal relationship. According to the provisions of China's property rights legal system, liens between enterprises are not subject to the same legal relationship.

Negative Element) 1.Possession of movable property is not based on tort; 2.Where the parties agree that retention in custody must not be made, retention in custody must not be given; 3.

Retention in custody must not be contrary to public order and good morals; 4.The lien must not conflict with the obligations assumed by the liener;

The "creditor" is in legal possession of the debtor's "movable property". If the creditor's claim has not yet reached the repayment period, and its obligation to deliver or return the subject matter in its possession has expired, the right of retention cannot be exercised. However, the creditor can prove that the debtor is incapable of paying.

The movable property retained by the creditor shall belong to the same legal relationship as the creditor's right. However, this does not apply for retention between enterprises.

The right of lien refers to the right of the creditor to retain the movable property of the debtor in possession as security and realize the claim before the claim is not repaid as scheduled. The following conditions must be met for the establishment 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 debtor's movable property 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 obligations after the repayment period of the creditor's rights has expired, the creditor may 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 lien.

The establishment of a lien, also known as the occurrence of a lien, refers to the effect of the creditor's retention on the debtor's property in its possession and against the debtor's demand for payment because of the existence of statutory reasons. According to the laws of China, the establishment of a lien shall meet the following conditions:

1. There must be a creditor's rights and debts relationship between the two parties. The right of retention is a security interest, and the significance of the existence of the security interest is to guarantee the performance of the debt and ensure that the creditor realizes its claim, so the right of retention is premised on the existence of a creditor-debtor relationship. Only when the creditor's right is legally and validly existed, can there be the problem of the creditor's exercise of the right of lien.

2. The creditor is in possession of the debtor's movable property in accordance with the contract. A lien is a legal security interest based on the possession of movable property, and the creditor can only have a lien because the creditor is in possession of the debtor's movable property because the contract agrees. Moreover, the creditor can only establish a lien if it takes possession of the debtor's movable property as agreed in the contract; If the creditor takes possession of the debtor's movable property on the basis of a contract in which the creditor's right is not established, a lien shall not be established, that is, if the creditor takes possession of the debtor's movable property due to unjust enrichment, management without cause, or tort, the right of retention shall not occur.

3. There is an implication relationship between the creditor's right and the creditor's possession of the property, that is, the possession of the creditor's right and the large subject matter of the previous period is based on the same contractual relationship. It is precisely because the claim and possession are based on the same contractual relationship that the lien becomes a means of ensuring the performance of the debt of the contract alone.

4. The creditor's right has reached the repayment period and has not been repaid. The purpose of the lien system is to maintain the fairness of the transaction between the parties and to secure the repayment of the claim. Therefore, the lien can only be exercised when the debtor fails to perform the debt upon the expiration of the repayment period.

Relevant provisions of the Civil Code of the People's Republic of China: Article 447 [Definition of Lien] 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 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:[Relationship between Lien Property and Creditor's Rights]The movable property retained by the debtor shall belong to the same legal relationship as the creditor's rights, except where there is a lien between enterprises. Article 449:[Restrictions on the Scope of Application of the Right of Lien]Movable property that is not subject to retention under legal provisions or agreed upon by the parties must not be retained. Article 450:[Special Provisions on the Retention of Property as Divisible Property]Where the retained property is divisible, the value of the retained property shall be equivalent to the amount of the debt.