Study On The Port Operator's Container Lien

The lien is frequently used by the creditor to protect his debt, and it plays an important role in commercial transactions. There are two important changes about the lien system in Property Law of the People's Republic of China 2007:firstly, Property Law expanded the scope of lien, not only the contract debt, but also the other debt can be secured by the lien; secondly, Property Law made special provisions about the lien between enterprises, didn't require possession of the chattel and the obligee's rights fall into a same legal relationship. With those changes, the lien system will play an more important role in commercial transactions. Article 230 of Property Law provisions:"the creditor can take lien of the obligor's chattels that are occupied by the obligee". Scholars have great disputes on the meaning of "the obligor's chattels", whether the chattels not owned by the obligor could be lien? During the global financial crisis, some shipping companies bankrupted. The port operator can't call back the THC of the container, and abroad container leasing company can't call back their rent and container. Just the domestic port operators also lost millions of THC.Because of the shipping companies are bankrupted, the container leasing companies ask for their container back, even use the RULE B law of America to attach the port operator's dollar account. How could the port operators protect their interests? The port operator use the lien system to protect their legal rights is not only a theory question, but also faced by the maritime court. Whether the port operator could take lien on the container is a urgent problem to be solved by the maritime court. Until this paper's deadline date, there isn't a definite judgement about the container lien. Whether the creditor could take lien on the chattels which are not owned by the obligee has not been settled under Chinese law.This paper tries to discuss the core problem of whether the creditor could lien on the non-debtor's property both on theory and practice. And the legal basis of the port operator lien on the container, bona fide acquisition of the lien, the legal status of the port operator are also important questions referred by the paper. The thesis is composed of four parts.The first part introduces the legal system of lien, it contains the definition, factures and the development of law, especially the new changes of the property law 2007. The second part analysis the legal basis of the port operators lien on the container, as well as the components of the lien.The third part, the port operator could not only lien on the obligee's chattels, but also the chattels occupied by the creditor who didn't know the oblige having no right to disposal of property. The burden of proof about bona fide acquisition should not be taken by the creditor, but the obligee or the owner. Lien between enterprises should fulfill the requirement of "business relationship".The last part, the property law should be perfected by the judicial interpretation. Firstly, make the meaning of the obligee's chattel clearly, secondly, the burden proof of bona fide acquisition should be taken by the obligee or owner, thirdly, lien between enterprises should have a requirement of connection, which called business relationship.