中國船舶優先權制度研究—海事權益的平衡和保障

Abstract

This thesis takes the theory of interest balance as the main research approach, from the perspective of the protection of maritime rights and interests through the maritime judicial practices, elaborates the legislative background and practical significance of the establishment of the maritime lien in maritime practice, analyses its basic connotation and legal attributes, interprets the important judicial function of the maritime lien.

Using the articles of maritime lien in Chinese Maritime Law as the starting point, this thesis shows several new situations that have emerged in China’s maritime judicial practice, and points out current shortcomings such as insufficient rights protection, unclear application of the law under the framework of the existing Chinese maritime lien, and then try to explore how to develop this international system in China. The thesis expands the research on the maritime lien system, analyses and demonstrates the boundary of its protection scope, limits the conflict between Conceptualism and Realism. This thesis provides the ideas for the construction of the maritime lien system with Chinese characteristics which can effectively apply to specific areas and subjects and provide theoretical support for the amending of Maritime Law and Special Maritime Procedure Law. As a unique legal system in the Maritime Law of the People's Republic of China and Special Maritime Procedure Law of the People's Republic of China (hereinafter referred to as Maritime Law and Maritime Procedure Law respectively), the maritime lien is a comprehensive product of China's maritime judicial practice and international maritime laws and regulations. However, with the operation of maritime judicial practice for more than two decades, confusion and imperfections of the relevant maritime lien clauses in the theory and practice have also become increasingly prominent. At present, in the draft revision of Maritime Law under discussion, although the basic content and form are incorporated with international treaties, some obsolete clauses of maritime lien that are not compatible with maritime judicial practices and China's national conditions are still transplanted and retained. From the perspective of maritime judicial practices, China's Maritime Law has not been modified and improved since its promulgation in 1992. Therefore, the revision of Maritime Law has become an important academic issue in recent years. However, there has been no consensus on the major adjustment to Maritime law until now. Moreover, since the complicated factors of different emphasis on various special systems including maritime lien, there is a lack of systematic theoretical research on maritime lien. Especially, there is a lack of research on this system under the new model of maritime law legislation in various countries around the world, as well as macro research and theoretical reflection on the model of Chinese maritime law from the perspective of maritime rights protection.

The maritime lien is a special system with a long history in the law of carriage of goods by sea. It is an undeniable trend to amend the system within the current Chinese legal framework. The significance of maritime law and relevant systems to the protection of maritime rights and interests’ looms. The most representative maritime lien, as a security interest in real right system, has become one of the most important maritime legislations to protect the balance of interests of special maritime creditors. Moreover, it will play an irreplaceable role in legal protection to safeguard the development of national shipping. According to the new developments of China’s maritime judicial cases in recent years, the maritime lien system needs to be optimized and extended, and the protections of maritime rights as important variables should be incorporated to the amendment. Therefore, with the new changes in the shipping area in the world and the interests balance between ship-owner and cargo-owner, the maritime lien system will play its guiding role and strike a balance for the interests of all parties in the shipping.

The writer has been engaged in the practice of maritime judicial trials in China for more than 20 years, and personally undertook more than 100 important maritime cases involving the maritime lien. Given that, the writer has a deep understanding of the important status and role of the maritime lien in maritime law, as well as the problems of the maritime lien system, and believes that the theoretical research about the scope of maritime lien should be strengthened.

Based on specific issues such as the unclear legal basis, lack of rigorous scope of protection, insufficient realization of rights, and legal gaps in rights conflicts in the existing system, meanwhile on account of the new situations and contradictions in the practice of maritime judicial adjudication, this thesis analysed the shortcomings and possible improvement of the legal system of maritime lien. In order to demonstrate the in-comprehensive of China’s maritime lien legal system and the reasons for the insufficient protection of rights, this thesis enumerates from data on the status quo of maritime cases in the past ten years, proves the internal causes of the institutional deficiency about the conflict between legal system, concepts and realizations, such as the bankruptcy system, in the priority of the limited liability system, and try to explore the reasons for the disunity and confusion in judicial theory and practice. On basis of the summary of the new changes that have emerged in China's maritime judicial practice, this thesis attempts to demonstrate that maritime factual adjudication will promote or counteract new ideas and viewpoints in the theoretical research of the maritime lien system and find the best solution to the above-mentioned problems.

The thesis provides measures to solve the problems by comprehensively considering the objective and the actual impact of the several issues on the realization of maritime lien, such as marine environmental pollution infringement, crew labour protection, limitation of liability, salvage, bankruptcy procedures and other factors. From the perspective of marine insurance compensation, this thesis looks at some new issues, such as the rigor of the practice of taking the time of departure as the starting point in the crew's remuneration and social insurance, and the rationality of crew labour compensation and their duties against ship tort liability compensation, the feasibility of incorporating the maritime lien to the social public marine environmental protection and whether the alternative assets provided by the insurance for the compulsory auction of the ship are applicable to the extension of the maritime lien compensation.

This thesis analyses the conflicts and deficiencies of the legal system in the area of maritime lien and summarizes the maritime justice practice obstacles and legal puzzles of realism, by combining the latest developments in China’s international trade economy, global shipping and other huge changes and maritime judicial realities over the past two decades. Also, this thesis based on maritime adjudication practice, the focus of the research is the contradictions of the core elements of the system such as the claimant of the right, the right period, the comparison of the order of compensation, the litigation procedure, the realization path, and the settlement of the right conflict. Theoretical solutions to these problems will be offered.

This thesis starts with some key issues including marine environmental pollution and rescue, the conflict of legal concepts between the maritime lien and the limitation of liability, the legal issues of maritime liens in bankruptcy proceedings, the sequence of maritime lien and refinement, the reform of maritime proceedings for exercising maritime lien, the relationship between the action in rem system under UK law and the arrest of ship in China, the distribution of the auction money of the maritime lien, and the relationship between the insurance compensation and the elimination of the maritime lien. By enumerating maritime judicial cases and conducting empirical analysis of internal practice interviews with the Chinese maritime judges, this thesis makes a statistical analysis of maritime cases involving maritime liens, compares the theoretical literature and judicial practice of maritime liens, so as to conduct a comprehensive and systematic theoretical research.

In view of the shortcomings of the maritime lien system in practice, this thesis proposes suggestions of theoretical value and tries to promote the development of the system. Moreover, this thesis aims to provide a more scientific and systematic theoretical basis for the Draft for Amendments to Maritime Law and the Supreme People's Court judicial interpretation on several issues about of maritime lien system. This thesis takes the protection of maritime rights and interests as the starting point, expounds the lien clause in multiple dimensions, and proposes suggestions for the revision of the maritime liens in the Maritime Law in order to find a better way to improve the maritime lien system.

Under the framework of China's maritime law, this thesis addresses the core issue of improving maritime lien in China, fills in the void in both legislation and legislative amendment. By proposing sound and reasonable solutions, the thesis proposes to bring the theory centered on protection of maritime rights and interests into the system of maritime lien. At the same time, this thesis broadens the traditional legislative concept of maritime liens. On the basis of personal and property rights protection, it takes maritime rights as a protection objective, and demonstrates the sequence of the realization of maritime lien. This thesis puts forward new suggestions for expanding the protection of maritime lien and limiting the realization of maritime lien, comprehensively weighing the advantages and disadvantages of broadening or limiting the scope of protection to all parties in the shipping area, from the perspective of maritime rights theory, and then proposing optimization of the core elements of the maritime lien system with institutionalizing the protection of all parties as the ultimate goal.

Based on the theory of balance of interests, this thesis puts forward some suggestions for the improvement of the maritime lien system from the perspective of protecting marine rights and interests. This thesis studies the application standardization of the legal system of maritime lien from the perspective of maritime rights and interests. The purpose of this thesis is to find out the institutional and legislative deficiencies in the development of Chinese shipping in the new era. Based on judicial practices, this thesis aims to reconcile the conflicts between the system of maritime lien and foreign laws and international conventions and build a new legal protection mechanism that balances interests in the field of international maritime liens. By improving China’s legal system of maritime lien, the thesis hopes to maximize its function of providing legal protection for the Belt and Road construction.

Date of Award	18 Oct 2023
Original language	Chinese (Traditional)
Awarding Institution	City University of Hong Kong
Supervisor	Wenwei GUAN (Supervisor) & Liang Zhao (External Co-Supervisor)