Effect of the Property Law on the Lien on Goods 1

The lien on goods belongs to the civil law and is regulated by the Civil Code, and the lien exists subordinately to the creditor's right, and has the same property right as the creditor's right. The right of lien on goods by sea refers to the right of the carrier to retain the goods in its lawful possession during the carriage of goods in accordance with the contract of carriage by sea or in accordance with the provisions of the law, and to be repaid in priority in respect of the property retained or the price of the sale.

The scope of the lien security includes the main claim and interest, liquidated damages, damages, costs of keeping the lien and the cost of realizing the lien.

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

If the debtor fails to perform its debts within the time limit, the lienholder may agree with the debtor to discount the value of the retained property, or may receive preferential repayment of the price obtained from the auction or sale of the retained property.

The lienholder has the right to receive the fruits of the lien. The fruits collected shall be offset against the costs of collecting the fruits.

The person with the right of retention has the obligation to properly keep the property in custody, and shall be liable for compensation if the property in retention is damaged or lost due to improper safekeeping.

1. What are the effects of the lien on the goods?

Effect of a lien:

1) The scope of the lien security includes the principal creditor's right and interest, the congratulatory payment for the breach of contract, the compensation for damages, the cost of keeping the lien and the cost of realizing the lien.

2) Where the retained property is divisible, the value of the retained property shall be equal to the amount of the debt.

3) If the debtor fails to perform its debts within the time limit, the lienholder may agree with the debtor to discount the value of the retained property, or may receive priority payment for the price obtained from the auction or sale of the retained property.

4) The lienholder has the right to receive the fruits of the lien property. The fruits collected shall be offset against the costs of collecting the fruits.

The person with the right of retention has the obligation to properly keep the property in custody, and shall be liable for compensation if the property in retention is damaged or lost due to improper safekeeping.

5) The debtor and the creditor shall stipulate in the contract that after the creditor retains the property, the debtor shall perform the debt within a time limit of not less than two months. If there is no agreement between the creditor and the debtor in the contract, the creditor shall determine a time limit of more than two months after retaining the debtor's property, and notify the debtor to perform the debt within that time limit.

Where a mortgage or pledge has been established on the same movable property, and the movable property is again liened, the lienholder shall be compensated in priority; When the legally registered mortgage and pledge of the same property coexist, the mortgagee shall be compensated in priority over the pledgee; When a pledge and an unregistered mortgage coexist, the pledgee shall be compensated in priority over the mortgagee.

2. What is the creditor's rights and movable property relationship of the lien on the goods.

The creditor's possession of the debtor's property is a prerequisite for the establishment and existence of the lien. Therefore, if the creditor does not take possession of the debtor's property, there is no lien, and if the creditor loses possession of the debtor's property, the lien is extinguished. However, if the creditor loses possession due to the tort and regains possession upon application for repossession, the right of retention will be affected.

The creditor's possession of the debtor's property may be direct or indirect, either individually or jointly. As to the reasons for possession, the civil law of most countries requires that possession is sufficient as long as it is not for tortious conduct.

Legal Analysis: The right of lien is a legal security interest in the right of the hand. Lien means that if the debtor fails to perform the due debt, the creditor may retain the debtor's movable property that has been lawfully possessed and has the right to be repaid in priority for the movable property.

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 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.

The right of lien is not an agreed security interest, but a statutory security interest, and the right of retention refers to the right of the creditor to retain the movable property of the debtor and have priority to be repaid when the debtor fails to perform the due debt.

Article 447 of the Civil Code of the People's Republic of China If the debtor fails to perform the debts due, the creditor may retain the debtor's movable property that has been lawfully possessed and destroyed, 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 454 of the Civil Code of the People's Republic of China: The debtor may request the lienholder to exercise the right of retention after the expiration of the debt performance period; If the lien holder does not exercise it, the debtor may request the people's court to auction or sell the retained property.

Article 455 of the Civil Code of the People's Republic of China: After the retained property is discounted, auctioned, or sold, the part of the price exceeding the amount of the creditor's right shall be owned by the debtor, and the debtor shall pay off the shortfall.

Answer]: B, C

According to the provisions of the Property Law of Paihuigao, the main obligations of the lienholder are: the lienholder has the obligation to properly keep the retained property; Where the property of the retained dust ruler is damaged or lost due to improper storage, it shall be liable for compensation.

1. Right of possession. The lien is legally established on the condition that the creditor takes possession of the debtor's property, so once the lien is established, the lienholder naturally enjoys the right to continue to take possession of the lien. 2. Right to receive.

During the period of possession of the lien, the lien has the right to collect the natural fruits and legal fruits arising from the lien. 3. Right to use. Because the lien has the right to possess the lien, it bears the duty of a good administrator to take care of the lien properly, and in principle, the lien holder can only possess and detain the lien, but cannot use it.

Article 400 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 debtor's movable property that has been lawfully possessed and has the right to be repaid in priority for the movable property. The person with the right to transport the debt provided for in the preceding paragraph is the lienholder, and the movable property in his possession is the property in his possession.

As for the scope of the lien on the goods, it specifically includes: 1. The carrier is the lienholder. Specific reasons include:

If the shipper fails to pay the freight, demurrage, empty storage charges and necessary expenses advanced by the carrier for the cargo for any voyage, the carrier has the right to retain the cargo when the shipper improperly describes the consignment or consigns dangerous goods without permission, causing damage to the carrier or other goods or property, the land freight or other charges charged by the carrier when the cargo is transported by multimodal transport, or any other debt to the carrier that fails to be performed on time, the carrier has the right to retain the cargo when the ownership of the cargo still belongs to the shipper; Freight due to be paid by the holder of the bill of lading is not paid, or the holder of the bill of lading has any other debt to the carrier that is not paid on time. The carrier has the right to retain the goods; If the merchant fails to pay the general average apportionment, the carrier has the right to retain the goods, etc. 2. The towing bearer is the lienholder.

After the towing is completed, the owner of the towed goods fails to pay the towing fee; Or regardless of whether the towing costs are paid or not, as long as there are any other debts to the source tower that have not been paid off on time, the towing party has the right to retain the towed goods, because the towed goods are in legal possession. 3. The rescuer is the lienholder. After the salvage operation is completed, the salvaged cargo shall provide a guarantee in a timely manner according to the requirements of the salvage party, otherwise the ship owner shall assist the salvor to retain the rescued cargo.

When the salvaged goods are in the possession of the salvage party due to the salvage act, the salvor has the right to retain the towed goods, regardless of whether the merchant provides a guarantee for salvage expenses, as long as the merchant has any other debts to the salvor that have not been paid off on time. 4 The port operator is the lienholder. For the cargo collected and distributed in the port and the yard, if the cargo is hail and someone has a debt due to the port operator and fails to pay off, the port operator has the right to retain the goods collected and distributed in the port, regardless of the early debt.

Article 87 of the Maritime Law does not apply to the port operator's exercise of a lien on the cargo in the port operation contract rather than on the international contract for the carriage of goods by sea, so the port operator's exercise of a lien on the cargo is not required in the Maritime Law for the operation client to have ownership of the goods. 5. Creditors of other civil legal relationships are liens. Once a creditor of other civil legal relations is in lawful possession of the debtor's goods in maritime transportation, it may also lien the goods when the debtor fails to pay off the debts due.

A lien is not an agreed security privilege, it is a statutory security interest. If the debtor fails to perform the debt within the time limit agreed in the contract, the creditor has the right to retain the property in accordance with the provisions of this Law, and to receive priority payment at the discount of the property or the price of the auction or sale of the property.

[Legal basis].According to Article 447 of the Civil Code, which came into effect on January 1, 2021, if the debtor fails to perform the debts due, the creditor may retain the movable property of the debtor who has been legally in possession of Chi Oak 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.