问题 问答题 简答题

2011年4月1日甲与乙签订了一份加工合同,合同约定由乙给甲加工一批价值人民币30万元的产品,加工费为人民币8万元,甲先支付定金人民币1万元,2011年5月15日甲领受产品时支付余款人民币7万元。2011年4月15日,甲由于生产的需要,与丙签订了借款合同,向丙借款人民币5万元,还款期为2011年5月15日。丙要求甲提供担保,于是甲与丙签订抵押合同,甲将在乙处正在加工的产品作为抵押物抵押给丙。根据以上案情,请回答:

(1)若甲领受产品时无法支付人民币7万元的余款,乙是否可以行使留置权?为什么?

(2)若甲不支付加工费人民币7万元,乙是否可以立即变卖加工物以实现自己的债权?为什么?

(3)若因甲到期不能支付加工费,也不能偿还借款,乙、丙同时行使权利,谁优先受偿?为什么?

答案

参考答案:

(1)可以。因《担保法》《物权法》规定,留置权是法定的担保物权,法定的条件之一是债权人必须依合同的约定合法地占有债务人的财产。(或乙依加工合同的约定合法地占有了甲的产品)

(2)不能。因《物权法》规定,债权人行使留置权后,可以与债务人约定留置财产后的债务履行期间,无约定或约定不明确的,留置权人应当给债务人两个月以上的履行债务的期限。该案未明确约定履行期间。

(3)乙优先受偿。因《物权法》规定,同一动产上已设立抵押权,该动产又被留置的,留置权人优先受偿。

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Passage 1 The message I wish to convey to you is that I have complete confidence that Beijing will deliver an outstanding Olympic Games in 2008, that this will be a wonderful event for China and for the world, and that it is already serving to strengthen the very close relations between Australia and China. My own association with the Beijing Games began with Beijing’s bid. For me and for a number of Australians, the opportunity to support and assist the bid was far more than simply an interesting professional exercise. It was an opportunity to do something important.// We believed then, and we believe now, that hosting the biggest and best people-to-people event on the world’s calendar will give further momentum to the process of modernization in China and the friendly integration of China with the world community. The purpose of the Games is of course not geopolitical; it is to conduct a celebration of sport and culture. But, as we know from our own experience with both the Melbourne Games in 1956, when Australians reveled in that first historic opportunity to welcome the world to our shores and Sydney in 2000, when we were able to show the world the dynamism of modem Australia, the Games can and do leave a wider and powerful legacy.// So it will be for China in 6 years time. The legacy will in part be of a tangible kind -- world-- class venues and other civic buildings, the Olympic Green, increased trade, investment and business relationships. Beijing’s plans for these tangible legacies are impressive both in their ambition and in the determination of the organizers to bring them to fruition. But perhaps even more important in the long run will be the intangible legacy of the 2008 games. I refer here to the heightened consciousness of the importance of the environment, already a high national priority in China but one which is certain to be reinforced by the commitment to the Green Games.// An enduring memory for me from the days of the Beijing bid is the sheer delight of people in China, especially young people, at having the chance to play host to athletes, officials and visitors from around the world, to welcome them to China, to show them China and to build new friendships. International relations are not only about the conduct of political and economic affairs between governments and businesses. It must also be underpinned by the sort of deep international understanding that can only come from closer and closer relationships between peoples.// The Olympic Games are the most successful and popular embodiment of internationalism ever invented by human beings. During these glorious days, we will show how we can, at our best, transcend all differences of country, race and religion and truly embrace the common humanity that binds us all together. The participation of 1.3 billion people in that great goal can have profound and enduring benefits for our Asia-Pacific region and for the world. The Olympics are therefore coming to China at exactly the right time in terms of the changes underway in China itself and in terms of China’s engagement with the region and the world.//