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The Study On Legal Issues Of Aircraft Lien

Posted on:2014-01-06Degree:DoctorType:Dissertation
Country:ChinaCandidate:G Y PengFull Text:PDF
GTID:1226330425467727Subject:Civil and Commercial Law
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As the backwardness of aircraft liens legislation is not commensurate with the status of great power of civil aviation transportation in China, and can no longer meet the needs of current judicial practice, it will certainly affect the level of protection over the rights and interests of aircraft maintenance companies, airport enterprises and air navigation service enterprises, thus affecting the balanced and sustainable development of the whole air transport industry. Therefore, it is necessary to strengthen theoretical study, thus to provide a strong intellectual support for judicial practice, and to provide theoretical support for construction of lien legal system on China’s aircrafts. On the basis of the existing academic research, combined with conceptual analysis, historical analysis, benefit analysis, comparative analysis, empirical analysis and other research methods, this Paper is sought to know accurately the international trends and advanced legislation concept of aircraft lien system.The full text is composed of three parts:introduction, body and conclusion. The introduction mainly describes the research background and research meaning, research status both at home and abroad, research content and methods of this topic; the body first defines the concept of aircraft lien, followed by probing into the basis for existence, applicable range, establishment elements, legal effectiveness, exercise, and relief and other theories and practical problems of aircraft lien; the main research conclusions are summed up in the end, and several recommendations on perfecting our aircraft lien system are made.The body has six chapters (Chapter Ⅱ to Chapter Ⅶ). Chapter Ⅱ mainly involves the concept definition of aircraft lien. First of all, the aircraft as special movable property is defined, and its specificity is reflected in the registration and synthetics of aircraft. Secondly, groups of major existing concepts of liens are summed up, and that the legality, possession and property right of aircraft liens should be grasped in terms of content is worked out at the time of defining the concept of aircraft lien; in terms of extension, the categories of the commercial aircraft liens and civil aircraft lien, priority aircraft lien and non-priority aircraft liens should be highly concerned about. Thirdly, that the aircraft lien in nature is special lien is demonstrated, namely, the creditor’s right items secured by aircraft lien should be subject to strict limits, and the establishment element of aircraft liens is unique.In Chapter Ⅲ, the basis for existence of aircraft lien is demonstrated. First of all, different legislations, and the Geneva Convention and the Cape Town Convention are did up, of which the most inspirations are from the United States legislation and judicial practice. In order to ensure the integrate, continuous and healthy development of the air transport industry, legislators must take into account the balance of interests between various relevant stakeholders. Therefore, to protect the legitimate rights and interests of aircraft maintainers, airport enterprises and air navigation service providers by recognizing the aircraft lien has also become a trend of international legislation. Secondly, the basis for existence of aircraft lien is justified from a different angle by analyzing the fair value, efficiency value of aircraft liens and its legal functions.In Chapter IV, why and how to define the applicable scope of aircraft liens is demonstrated. First, through research on the legislation and justice practice of the United States and United Kingdom, the legislation precedents with already existing applicable range of qualified aircraft lien are revealed; second, taking a case of airline bankruptcy liquidation as an instance, the company’s debt amounts and debt structure are summed up, and the actual meaning of the applicable range of qualified aircraft lien is revealed; third, possible paths for balancing the conflict of aircraft interest-related bodies are analyzed and demonstrated, and the conclusion that the applicable range of qualified aircraft lien is the best path is drawn; fourth, with reference to the practices of the United States and United Kingdom, combined with the concepts in the Cape Town Convention, a method of citation combined with generalization is tried to be used to define the applicable range of aircraft lien as:(1) aircraft builders enjoy the lien to their aircraft being built in terms of building costs according to the law;(2) the operators who provide aircrafts and running activities with direct services enjoy the lien to the aircrafts of debtors occupied by them for the following service costs according to the law:maintenance costs of aircraft; necessary costs of aircraft maintenance; aircraft landing costs and aircraft ground costs (including providing parking aircrafts with parking seats and safety guards, guardianship, and berth booting system), flight command fees; air navigation meteorological service fees and air navigation communication charges; remuneration for rescuing aircrafts and necessary expenses for saving and maintaining aircrafts; other service costs directly related to aircrafts and their running activities.In Chapter V, the establishment elements of aircraft liens are primarily explored. First of all, the differences in the concepts of establishment, modification, transfer and others of aircraft lien are summed up, and then various doctrines on the establishment elements of aircraft lien are arranged. Secondly, the positive elements of aircraft lien are summarized:claim element, possession element and associated elements, and combined with the features of the air transport industry, a more detailed analysis on the positive elements is made; and the negative elements are summarized as follows:parties may not be retained, laws and regulations may not be retained, and the obligations that should be assumed by liens and parties are contrary. Third, based on the angle of lien establishment, the meaning, legal basis and component parts of bona fide acquisition of aircraft lien is demonstrated. If the creditors know clearly or should have known that the aircraft is not a belonging of the debtor, for the claim not associated with the aircraft, a premise of legislation for special protection is not provided; on the contrary, only if the creditor does not know or should have known that the aircraft under its possession is not a belonging of the debtor, it is necessary to give priority to protecting the creditor’s interests according to the law, that is, it is necessary to recognize the bona fide acquisition of aircraft lien. This is the legal basis for bona fide acquisition of aircraft lien. The bona fide acquisition of aircraft lien applies only to civil aircraft lien, and should be consistent with the essential elements of the property law on the bona fide acquisition of ownership.Chapter VI mainly involves the effectiveness of aircraft lien. This Paper starts from the registered belonging of aircraft, and focuses on analysis of the change publication, effective characterization and two effects of aircraft lien, as well as the effectiveness conflicts of other aircraft property rights and other issues. First, the change in aircraft lien shall apply to Article24in the property law. With reference to the United States legislative ideas, using the methods of literal interpretation and systematic interpretation, theoretical interpretation to relevant provisions on the property law is made, and it is concluded that the change in aircraft lien should be "delivered, effective and registered against"; then by learning from the United States practices, a basic structure for construction of our country’s aircraft liens registration system is proposed. Second, the effective characterization of aircraft lien is mainly reflected in the effectiveness of aircraft lien, the range of subject matter, the range of claims and range of main bodies. In this Paper, whether the effectiveness of aircraft lien extends to the engine separated from aircraft has also been detailed and analyzed; third, the content of effectiveness of aircraft lien is mainly reflected in the specific rights and obligations in the first-time effect and second-time effect of parties on aircraft lien, and it is specially stressed that even the second-time effect of the non-priority aircraft lien also includes the paid content of valence alternation. Fourth, where the same aircraft’s priority and lien coexist, the priority of the aircraft is given priority to aircraft lien; if meeting both the establishment element of priority and the establishment element of lien, creditors can select one to exercise; where the same aircraft’s mortgage right and pledge right coexist as lien, in principle, the aircraft lien is given priority to the pledge right and mortgage right of aircraft, but when the lien is not registered or the later occurred mortgage right and pledge right of aircraft are established according to the wishes of lienee, the effectiveness of aircraft lien may be inferior to the pledge right and mortgage right of aircraft. In this Paper, the conflicts between the effects of the aircraft lien and international interests of aircraft are also analyzed.Chapter VII mainly relates to the exercise and law protection of aircraft lien. On the exercise of aircraft lien, besides full analysis of the exercise program for aircraft lien, two specific problems are also detailed and analyzed:one is to launch the viable ways to dispose of the detained aircrafts by forced auction and forced sale starting from the characteristics of aircraft itself, in combination with the latest amendment content of our civil law; the other is to analyze the declaration and review of claims, bankruptcy restructuring program and negative impact of the exercise of recall right on the exercise of aircraft lien in combination with the bankruptcy liquidation program. About the law protection of aircraft lien, mainly from the angle of protection of aircraft lien, the types of behaviors infringing upon aircraft lien, ways of law protection of aircraft lien and applicable laws for handling law controversy of aircraft lien are analyzed and explored, and the behaviors infringing upon aircraft lien are classified into infringing upon the possession of aircraft, infringing upon aircraft itself, and infringing upon the subrogation right of creditor’s objects; combined with the provisions on the property law and infringement behavior law, an integrated legal protection mode of confirming request right to aircraft lien, return request right to aircraft possession, request right to damage compensation, and return request right to subrogation; with reference to the processing practices for controversies of maritime lien, according to the Law of the PRC on Application of Laws to Foreign-Related Civil Relations and the explanation to several issues applicable to the Law of the PRC on Application of Laws to Foreign-Related Civil Relations of the Supreme People’s Court, an agreement on how controversies of foreign-related aircraft lien apply and the proper law should be given priority to apply to parties; if no agreed, it applies to the laws of the aircraft location where the aircraft lien is established, changed, eliminated and infringed on.
Keywords/Search Tags:Special Lien, Applicable Scope, Registered Against, Prioritize AircraftLien, Establish, Exercise, Relief
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