ПРИВИЛЕГОВАНО ЗАЛОЖНО ПРАВО У САВРЕМЕНОМ ПРАВУ РЕПУБЛИКЕ СРБИЈЕ: ФУНКЦИЈА, ГРАНИЦЕ И ПЕРСПЕКТИВЕ РАЗВОЈА
PRIVILEGED LIEN IN MODERN LAW OF THE REPUBLIC SERBIA: FUNCTION, BOUNDARIES AND DEVELOPMENT PERSPECTIVES

Summary/Abstract: The right of lien is one of the most significant legal mechanisms for securing claims, and it has a key role in both legal and economic systems. Its legal framework is based on the principle of priority in creditor’s favor, which raises numerous issues regarding legal certainty, the balance of interests between parties in legal relations, and the efficiency of enforcement proceedings. The creditor’s privilege in satisfying a secured claim is generally determined by the moment of the establishment of lien, in accordance with the principle of priority. However, in certain cases, the time of creation is not decisive for determining priority. This is the case when privileged lien exists. Due to the presence of interests that are deemed more important than the individual creditor’s right to priority satisfaction, exceptions to the chronological determination of lien priority occur, granting precedence to interests that must be protected. A privileged lien carries a “double privilege” – first, by virtue of it being a lien, which inherently provides priority, and second, because it enjoys precedence over other liens. This legal framework rises several key questions, such as whether a privileged lien enjoys absolute priority over other types of liens on the same asset, the limits of its application, and its impact on legal certainty in property transactions. This paper seeks to determine the most common situations in which this exception is applied i.e. whose interests the legislator prioritizes over the general principle of lien priority. In addition to analyzing the existing legal framework, the paper will examine comparative legal solutions, proposals for improving current protection mechanisms, and possible directions for the further development of privileged liens.

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