Legal provisions on liens, liens

The right of lien is: when the debtor fails to perform the debt within the due date, the party who is in legal possession of the debtor's property has the right to seize the goods and enjoy the priority right to be repaid for the goods.

Therefore, it only applies to property law.

The right of lien refers to the right of the creditor to retain the debtor's movable property that it has legally possessed when the debtor fails to perform the due debt, and to have priority in receiving repayment for the movable property. Among them, the creditor is the lienholder, and the movable property in possession is the lien property.

1. A lien is a statutory security interest. A lien is a security interest that arises directly under the law. Regardless of whether there is an agreement between the creditor and the debtor, as long as the conditions stipulated in the Civil Code are met, the right of retention will naturally arise.

2. The property retained by the creditor belongs to the same legal relationship as the creditor's right. If the creditor's claim does not arise from a relationship in the property in which the property is retained, the property may not be retained. It should be noted that the Civil Code makes an exception to the above-mentioned implication relationship, that is, "except for the retention between enterprises", that is, it recognizes the particularity of commercial liens.

3. The right of retention is based on the lawful possession of the debtor's movable property. Lien refers to the possession and detention of the debtor's movable property and refusal to return it, so the right of retention is based on the possession of the movable property. If the creditor loses possession of the debtor's movable property, the lien is extinguished.

4. The effect of the lien is twofold. The lienholder may retain the debtor's property and deprive it of the right to use before its claims are discharged, so as to create psychological pressure on the debtor and thus urge the debtor to perform its debts. This is the lien effect (power) of the lien, also known as the first effect of the lien, and is the main effect of the lien.

The right of retention means that if 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 property in accordance with the law, and the property shall be discounted or the price of the property sold by auction or sale shall be paid in priority.

1. The right of retention is statutory;

2. The right of retention has the nature of a property right;

3. The right of retention is indivisible;

4. The lien has a subordinate nature, that is, when the lien is realized, the lienholder must determine the grace period for the debtor to perform the debt.

The positive element for the acquisition of a lien is the fact that the acquisition of a lien should have. According to the provisions of the legal system of property rights, the following requirements must be met for the establishment of a lien:

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 passed the repayment period. The creditor's right cannot be exercised before the repayment period has expired, and the obligation to deliver or return the subject matter in possession has expired. However, the creditor can prove that the debtor is incapable of paying.

3) Movable property and possession are the same legal relationship as creditor's rights. In addition, according to the provisions of China's property rights legal system, liens between enterprises are not subject to the restriction of the same legal relationship.

In addition, the establishment of a lien is subject to a restriction on the negative element of the acquisition of the lien, which refers to the circumstances or factors that prevent the occurrence of the lien, also known as the restriction on the establishment of the lien. The requirements are as follows:

1.The property to be retained does not contradict the instructions given by the other party before or at the time of delivery of the property. The right of lien is a statutory security interest, which may not be created by the parties with the intention of the parties, but the application of the right of lien may be excluded according to the agreement of the parties.

2.The retention of the debtor's property is not contrary to public order or good morals. This article is a general principle that should be followed in civil activities, and although it is not expressly stipulated in the General Principles of China's Civil Law and the Guarantee Law, it should also be observed.

3.The property subject to retention does not conflict with the obligations assumed by the creditor. If the creditor's obligation in the Slippery Respect is to deliver the subject matter, the creditor may not exercise the right of retention on the ground that the debtor has not performed its obligations, otherwise it is contrary to the intent of the obligation it has assumed.

Legal basis

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 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.

1. The provisions of the law on the right of lien: if the debtor fails to perform the debts due, and the creditor has legally taken possession of the debtor's movable property, the right of retention may be exercised in accordance with the law, and the movable property shall be repaid in priority. The lienholder may discount or auction or sell the movable property in accordance with the law.

2. Legal basis: 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 movable property of the debtor that has been legally in 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 4: The debtor may request the lienholder to exercise the right of retention after the expiration of the period for performing the debt; 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:After the retained property is discounted, auctioned, or sold, the part of the price exceeding the amount of the creditor's right shall belong to the debtor, and the part that falls short shall be repaid by the debtor.

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 debtor's movable property 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 of the Civil Code of the People's Republic of China provides that the movable property retained by a creditor shall belong to the same legal relationship as the creditor's rights, except for the retention of lien between enterprises.

Article 449 of the Civil Code of the People's Republic of China provides that movable property that is not allowed to be retained under the provisions of the law or agreed upon by the parties shall not be retained.

Legal Analysis:1The right of lien may be applied to processing contracts; 2.

The lien may be applied to the construction and installation contract in the capital construction contract; 3.A lien may apply to a custody contract; 4.A lien may apply to the contract of carriage in the contract of carriage; 5.

A lien can be applied to a property lease contract; 6.Liens can be applied to both entrustment and trust contracts.

Legal basis: Article 447 of the Civil Code of the People's Republic of China If the debtor fails to perform the debts due or Zhaoling, 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.

Scope of application of the right of lien: first, the right of lien can be applied to the processing contract; second, the right of retention can be applied to the construction and installation contract in the capital construction contract; Third, a lien may be applied to a custody contract; Fourth, the right of retention may be applied to the contract of carriage in the contract of carriage; Fifth, the right of lien may be applied to the property lease contract; Sixth, the right of lien can be applied to both the entrustment contract and the trust contract.

1. What is a lien?

A lien is a security interest. The right of retention means that if 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 property in accordance with the law, and the property shall be discounted or the price of the property sold by auction or sale shall be paid in priority.

The main characteristics of a lien are as follows: First, a lien can only occur in a specific contractual relationship, such as a custody contract, a contract of carriage and a contract for processing contract. Second, the lien has two effects, i.e., the subject matter of the lien and the sale of the price and priority of payment.

Third, the lien is indivisible, that is, the lienholder has the right to retain all the subject matter before the claim is fully paid. Fourth, when the lien is realized, the lienholder must determine the grace period for the debtor to perform the debt.

The conditions for the establishment of a lien include: first, the creditor is in possession of the movable property. Second, the movable property in possession must be related to the creditor's right. Third, the debtor failed to fully perform its debts on time.

2. The period of retention in custody and the handling of exceeding the time limit.

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

If the debtor still fails to perform within the time limit, the creditor may agree with the debtor to discount the value of the lien, or may auction or sell the lien in accordance with law.

After the lien is discounted, discounted, 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.

The lienholder shall be repaid for the value of the lien when the debtor fails to perform its obligations within the time limit for the debtor to perform the debt. If the time limit for the debtor to perform its debts has not expired, the lien excites the person to sell the value of the lien, which is a tort. The main purpose of setting up a lien is to urge the debtor to perform its debts and ensure that the creditor's right to accept the debt is fully realized, and the law encourages both parties to the contract to perform the contract as much as possible.

To this end, the law provides for a grace period.