论先取特权本质

Essence Theory of Charging Lien

从先取特权产生至今,学界对其定性一直不明。法国、日本等国家认为先取特权是物权权利;德国、智利和我国台湾地区则认为先取特权不是一项独立的权利,只是债权的一种特殊效力;我国法律中则没有对先取特权的系统规定。先取特权兼顾了民事主体的差异性,在保障形式正义的同时兼顾了实体正义。鉴于先取特权的不可或缺性,亟需我们明确先取特权的本质,从而形成体系化的先取特权制度,以保护弱者权益。

Charging lien has remained ambiguous in the academic circle since it was produced. In France, Japan and some other countries, charging lien has first been taken as a privilege of property right; while in Germany, Chile and China＇s Taiwan region, people reject to acknowledge that the privilege is an independent right, for they think it is just a special effect of creditor＇s rights. Further more, there is＇t a complete privilege system in our coun- try＇s law provisions. Charging lien may balance out the differences of civil subject, let us secure our justice and give consideration to the substantive justice as well. Taking into account the view of the indispensability of the char- ging lien, we need to fully understand the essence of privilege so as to form a systematically preferential privilege system to protect the rights and interests of the weak of the society