A Legal Research on the Mechanism of Priority Rights In Mainland China

• Main Authors: Hsiu-yun Wang, 王秀云
• Other Authors: none
• Format: Others
• Language: zh-TW
• Published: 2009
• Online Access: http://ndltd.ncl.edu.tw/handle/31002521143565929982

碩士 === 東吳大學 === 法律學系 === 97 === Scholars between two sides of Taiwan Straits cannot reach a consensus on how to define the “priority rights” from the perspective of the comparative law. In Taiwan, many civil laws use the term “priority rights”, but underlining concept of the term differs from one law to another. In narrow terms, the priority rights is priority claim or the rights of priority reward, referring to making specific creditor’s rights superior than other creditor’s rights. In broad terms, priority rights include the rights of priority purchase, the rights of priority lease, the rights of priority application, and the rights of priority passage. The priority rights in narrow terms can be further divided into agreement priority rights and legal priority rights. “Agreement hypothec” of the Article 860 of the Civil Law, and “Agreement priority rights” of the Article 884 of the Civil Law can both be defined as the Agreement priority rights. However，in mainland China, the term “priority rights” can be categorized into three views: broad term, narrow term, and narrowest term. In broad terms, priority rights include the rights of priority purchase and the rights of priority lease. In narrow terms, priority rights can be divided into agreement priority rights and legal priority rights. In narrowest terms, priority rights can only be defined as the legal priority rights. It is noted that agreement priority rights is not included. In the Draft of Chinese Property Law which was proposed by Professor Li-Ming Wang of Renmin University of China, the narrowest term is applied to define the priority rights. This usage of the term is agreed by many Chinese scholars. Accordingly, this research intends to understand the priority rights based on the narrowest term, and divides the concept of term into “general priority rights” and “special priority rights.” In the draft proposed by Professor Li-Ming Wang, French model was applied to combine priority rights and mortgage rights into vouch property law. However, in the 5th meeting of the 10th National People’s Congress of PRC, Professor Li-Ming Wang’s draft was not passed. Therefore, the concept of the priority rights is not universally agreed. Because the property rights is considered as vouch property law, it is recommended to adopt French model in order to make it consistent in the system of law and to avoid the difficulties of applying the priority rights. As a result, the concept of the priority rights can be consistent in the General Civil Law of China. Finally, based on the analyses, comparative studying, evaluation, and recommendations of this research, it is argued that mainland China’s Law system and practices can be strengthened by establishing the system of priority rights. When more and more companies invest in China, it is hoped that this research can be helpful to both academic research and business practices.