중국 상사유치권의 성립요건에 관한 고찰

Abstract

In modern times, each country in the civil law system has counted and developed the initial commercial lien and stipulates the commercial lien in two legislative ways. One is a legislative method of separation of business and private sector (Korea, Germany, Japan, etc.), which distinguishes between civil lien and commercial lien and stipulates them in the Civil Code and the Commercial Code, respectively. The other is the law of civil and commercial unity (China, Switzerland, etc.), which does not distinguish between civil lien and commercial lien, and both are stipulated in the Civil Code. The former, as an independent system, specifically stipulates the contents of the commercial lien. The latter is a system that is not independent of civil lien, and the provisions on civil lien apply mutatis mutandis. According to Article 447 of the Civil Code of China, if the debtor fails to pay the debt due, the creditor may retain the debtor's movables already in his lawful possession, and the movables may receive preferential payment. In addition, according to the proviso of Article 448 of the Chinese Civil Code, a general commercial lien system was established to clarify the difference between civil lien and commercial lien. Article 448 of the Civil Code of China is the only provision regarding commercial lien under the Civil Code of China. In other words, according to Article 448 of the Chinese Civil Code, China's commercial lien does not require a relationship between the object and the creditor. Therefore, although the subject condition, which is the criterion for establishing a commercial lien in China, is briefly stipulated by the word “enterprise”, the general opinion is that the word “enterprise” is interpreted as a merchant in Article 448 of the Chinese Civil Code, and also if it is interpreted as a merchant, discusses whether special operators such as rural contractors and individual entrepreneurs under the Civil Code of China can be included in the subject of commercial lien. And with respect to the object requirement, which is a requirement for establishing a commercial lien, Korea's commercial lien is separate from the civil lien under the Civil Act and stipulated in the commercial law. China's commercial lien is stipulated in the Civil Law, and the provisions of civil lien are applied mutatis mutandis. Only movables can be used as an object, and the possibility of a commercial lien on the property of a third party is not explicitly stipulated. It briefly stipulates that the commercial lien established on the property of a third party cannot stand against the third party's request for return. Real estate is also being discussed about the possibility of becoming the object of a commercial lien. It is also being discussed whether registered securities, which are special movable assets, can become the object of China's commercial lien. The main contents of the conditions for establishment of commercial lien under the Civil Code of China are as follows. Both parties, who are the subjects of China's commercial lien, must be merchants. In other words, commercial lien in China only exists between merchants and does not require a relationship between the subject matter and creditors, but only when the subject matter is occupied and claims are generated through the business activities of both parties. The object of commercial lien in China excludes real estate and is limited to movable property. In addition, according to the judicial interpretation, the object of a commercial lien is not necessarily limited to the property of the debtor, but the commercial lien established on the property of a third party cannot be opposed to the owner of the lien. The establishment of a commercial lien in China does not require a probationary relationship between the subject matter and the creditor, but only needs to occupy the subject matter and release the claim according to the business activities of both parties.