A Study On Existence, Transfer And Extinguishment Of Maritime Lien

The article studied on the existence, transfer and extinguishment of maritime lien, which was intended to find the reasons and motivations in its forming process. And it provided a new perspective to settle disputes on maritime lien in legislation and judicature. The main contents and writing ideas of this thesis were as follow:Firstly, the thesis tried to research the historical origin and legal nature of maritime lien. In the historical origin of maritime lien, it could be found some clues from the ancient maritime code, for example Rhodian Law, Greek Law and Roman Law. And the Roles of Oleron is the most intuitive and specific origin references of maritime lien, which could be still well preserved now. Most of related legislation in two main legal systems was also based on the Roles of Oleron. International Maritime Committee took efforts to promulgate three international conventions in 1926, 1967, 1993 in order to solve the conflict of laws and unify legislation of maritime lien.And legal nature of maritime lien, it produced different theories and views according to different legal systems. Common law countries generally took the maritime lien as procedural rights after introducing the concept of action in rem in Roman Law. Civil law countries generally support the doctrine of “substantive right”, but it produced some differences of disputes and opinions because of the diversity of substantive right. In China, the doctrine of “real rights for security” could be widely adopted by most specialists and scholars. However, there were some defects in these 2 doctrines, and the author was preferred to identify maritime lien as a special real rights for security.Secondly, it studied on the related contents on existence of maritime lien. The existence of maritime lien was based on specific maritime claims in law. In theory, maritime lien existed three International Conventions in 1926, 1967 and 1993 and in Article 22 of Maritime Code of PRC. However, the most important issue in practice was how to identify the starting point of maritime lien in order. And this thesis classified three aspects of crew wages, personal injury or life loss compensation and port charges to discuss its starting point respectively.Thirdly, it studied on the related contents on transfer of maritime lien. In current academic circles, three concepts of transfer, assignment and subrogation were used in disorder. As international rules, transfer should be classified to assignment and subrogation according to the standard transfer ways. And it made the classified discussion on whether the maritime lien could be transferred and in which way the maritime lien could be transferred from aspects of personal and non-person, according to Article 22 of Maritime Code of PRC. These transfer items concluded seamen liens, personal injury or life loss Liens, port charge liens; salvage liens and property compensation liens.Finally, it studied on theory basis and research value of extinguishment of maritime lien at first. In international, 1967 Convention and 1993 Convention both ruled that the compulsory sale result the extinguishment of maritime lien. And then many countries made similar stipulations based on international conventions. However, every reasons of extinguishment were not identical in practice. So the following sections would discuss each of reason for extinguishment of maritime lien, which could produce different legal issues, according to Article 29 of Maritime Code of PRC. These extinguishment reasons of maritime lien concluded expiration, compulsory sale and craft loss.According to these arguments above, the article studied on existence, transfer and extinguishment of maritime lien beginning with its origin and development. And then it mainly discussed the related theories of Anglo-American legal system and civil law system, as well as analyzing the current legal system in China. Above all, the issues on this master thesis were of great significance.