중국 선박유치권제도에 관한 연구

Abstract

China enforced Maritime Law from July 1st, 1993. It was the first time to legislate domestic law based on international treaty after the establishment of the People’s Republic of China. Maritime Law is special in its form of legislation and legal contents. No coherent Civil or Commercial Code existed except General Principles of Civil Law in China by the time Maritime Law was enacted. Therefore, Maritime law is considered as a special law besides Civil law and General Principles of Civil Law is applied only if contents conflict with Maritime Law. A real right of a ship consists of ownership of a ship and security right on a ship. The security right on a ship consists of maritime lien, lien on ship, mortgage on ship. China referred to 1967’s Convention to regulate lien on ship, the 1993’s Convention coheres with 1967’s Convention. The purpose of the treaty is to realize an international unification of mortgage area, to promote a development of ship finance, and to reduce subsections of maritime lien. Lien of ship that prior to mortgage on ship is limited to a builder and a fixer as it enhances ship finance by raising the ranking of reimbursement of a ship mortgage. According to Chinese Maritime Law, lien on ship except the ones subject to Article 25 is subordinate to maritime lien and mortgage on ship. Therefore, Chinese Maritime Law regulates different level of lien on ship, and this made it hard to logically interpret lien on ship. In addition, the conflicts or contradictions among each chapter brought confusion to the entire system of Maritime Law. Therefore, a systemic reconstruction of lien on ship is necessary for its clearer understanding. This will contribute to ensuring a guarantee’s interests and revitalizing ship finance.