After the pledgee loses possession, if the pledgee returns the occupied pledge to the pledger based on his own wishes, the pledge will be destroyed. If the corresponding loss of possession can be recovered, the pledge will not be destroyed, but it can be returned to the third party or pledger based on the pledge.

Pledge and lien are based on the possession of the subject matter, and they are all destroyed because of the loss of the possession of the subject matter. Of course, if it can be restored, the pledge will not be destroyed. Therefore, the competition between the two often occurs in the following three situations:

(1) The pledgee obtains the lien on the pledged property based on the establishment of the lien. At this point, the pledge and lien are enjoyed by the same subject. In this case, the lien has no effect on the pledge. However, pledge has an impact on lien. Because the pledgee has a lien on the pledged property, when the possession of the lien is sealed up, he may request restoration based on the pledged property; Lien can be extinguished by the debtor's guarantee, but pledge is not extinguished.

(2) Re-establish the pledge right on the lien. Where a lien holder establishes a pledge with a lien without the consent of the owner, its establishment is invalid. However, the creditor can set the chattel pledge according to the principle of bona fide acquisition; The oath agreed by all the people is of course valid. When there is competition between the pledge and the lien when it is re-established, the pledge should take precedence over the lien, because in this case, the subject matter has been actually occupied by the pledgee and the lien is an indirect possessor.

(3) Set up a lien on the pledge, that is, the pledgee gives the pledge to a third person for possession, and the third person obtains the lien in good faith based on the reasons for the establishment of the lien. In this case, the lien should take precedence over the pledge, because in this case, the subject matter is actually occupied by the lien holder, and the pledgee is the indirect possessor. If the pledge is retained by the carrier due to the default of freight, the lien holder shall enjoy priority according to the principle of possession priority.

Extended data:

Causes of lien extinction

Lien belongs to security interest, so the general reasons for the extinction of security interest also apply to lien, such as the extinction of principal creditor's rights, the realization of security interest and the creditor's abandonment of security interest. The elimination of lien means that lien no longer exists after it is established due to certain legal facts.

Article 240th of the Property Law stipulates: "If the lien holder loses possession of the lien or the lien holder accepts another guarantee from the debtor, the lien shall be extinguished." Therefore, the special reasons for the elimination of lien mainly include:

1. The debtor provided another guarantee. The debtor may provide another guarantee to replace the lien guarantee and cancel the lien. There are many ways to guarantee debts, such as guarantee, mortgage and pledge. , all have the function of ensuring the realization of creditor's rights. The guarantee provided by the debtor alone must be approved by the creditor, otherwise the lien cannot be eliminated.

As the lien guarantee belongs to the legal guarantee, the occurrence of lien is independent of the will of the parties, so it does not rule out the possibility that the lien guarantee is not the best guarantee for the parties. Lien belongs to creditors but creditors can't use it, which actually leads to the idleness of lien, which is not conducive to the full play of lien effectiveness and economic circulation.

Therefore, the law allows the parties to negotiate separately to set a guarantee to replace the lien.

For example, a factory gives its raw materials to B factory for processing, and the processing fee cannot be settled when it expires. As a result, factory B kept the products of factory A. ..

But in this way, it may delay the performance of a factory's obligations to customers, and it is necessary to pay a high penalty to others, and the result is unimaginable. At this point, a factory proposes to B factory to mortgage all its factories, and if B factory accepts it, the lien can be eliminated.

A factory can get back the goods and deliver them to customers, not only without paying liquidated damages, but also with payment, which can be used to pay the processing fees of B factory ... This will help the utility of things and promote the circulation of goods.

2. The loss of lien possession is the premise of lien establishment, and the loss of creditor's lien possession makes the basis of lien guarantee lose, which constitutes the reason for lien elimination. Creditors lose possession of liens in two ways:

(1) If the creditor loses possession due to the creditor's reasons, if the creditor returns the lien to the debtor, the lien will of course be destroyed, and it cannot be recovered when it is reoccupied for other reasons.

(2) Due to the illegal occupation by a third person or debtor, the creditor's possession of the retained property is lost. In this case, the creditor's right of possession can resist the intruder and has the right to ask him to stop the infringement, restore the original state and return the original thing. The creditor's lien may not be eliminated, but when he loses possession, he regains possession.

Baidu encyclopedia? -People's Republic of China (PRC) Property Law