A Study On The Relevant Legal Issues Of The Bankruptcy Of Chinese Shipping Enterprises

In recent years,because of the continuous downturn in the shipping market,a lot of shipping enterprises have been bankrupt,and the bankruptcy cases of shipping enterprises are increasing gradually.However,due to the particularity of the maritime legal system and the lack of specialized regulations that regulate the bankruptcy of shipping enterprises,in the legal application of the bankruptcy case of the shipping enterprises,there are many legal problems in the jurisdiction of shipping enterprise bankruptcy cases and related litigation,property preservation and execution of bankrupt shipping companies,shipping companies bankruptcy exemption right liquidation and the limitation fund for maritime claims procedures.Therefore,this article discusses the legal problems in the above aspects one by one,clarifies the legal problems,and then discusses the necessity and suggestions for revising the specific regulations.For this purpose,this article includes the following parts:The first chapter starts with a judicial case of the conflict between Shanghai maritime court and the local court in the arrest and auction of ship,and puts forward the consideration of the legal problems related to the bankruptcy of the shipping enterprises.Then it introduces the characteristics of the bankruptcy case of the shipping enterprises,and discusses the particularity of the bankruptcy claims,bankruptcy property and the application of law in the bankruptcy process due to the particularity of the shipping enterprises when the shipping enterprises are bankrupt.The second chapter firstly discusses the jurisdiction of the bankruptcy cases of Chinese shipping enterprises.The maritime court owns the special jurisdiction of maritime cases,while the Court of residence of the debtor owns special jurisdiction of the bankruptcy cases.By analyzing the conflict between the centralized jurisdiction of bankruptcy cases and the special jurisdiction of maritime litigation under the current law,the present situation of the jurisdiction is reconsidered.It is considered that the jurisdiction of the shipping enterprises should be amended to facilitate the parties to participate in the litigation and to truly realize the intention of the special jurisdiction.The third chapter discusses the problem of property preservation and enforcement in the bankruptcy of Chinese shipping enterprises.Maritime claims' preservation and execution is a property preservation and enforcement system specially applied to maritime litigation,which is different from general property preservation.In particular,the arrest and auction of ships is the core system.The arrest and auction of ships is a system of property preservation and execution with unique maritime characteristics.It has special application conditions and applicable procedures.The nineteenth provision of the Enterprise Bankruptcy Law stipulates that when the court accepts the bankruptcy application,the debtor's property preservation and execution procedures shall be suspended.The provision is the embodiment of the principle of fair compensation for creditors in the bankruptcy law.However,due to the high risk and high fluidity of the ship which it is difficult to control and so on,it is worth thinking about whether to suspend the arrest and auction of ships.The real right of security that enjoys exemption right can give priority to the guaranty,and it is not restricted by the nineteenth provision of the Enterprise Bankruptcy Law.By analyzing the rights attribute of the maritime claim for the arrest and auction of the ship,the maritime claims are divided into maritime claims that enjoy the exemption right and general maritime claims,and then we discuss that,under the current law,maritime claims that enjoy the exemption right are unrestricted to continue the arrest and auction procedures of the ship;while the general maritime claim shall follow the provisions of Enterprise Bankruptcy Law and terminate the arrest of ships or suspend the ship auction procedure.Another concern of ship arrest is the storage cost of ship arrest,which is different from the general property's custodial expenses.The amount of the cost is often higher while long-term detention can even be equivalent to most of the value of ship.The storage cost of the ship belongs to the bankruptcy fee and enjoys the right to give priority to the liquidation at any time.If the auction of the ship is detained or suspended in accordance with the Enterprise Bankruptcy Law,it is necessary to clear the cost of storage first.When the trustee in bankruptcy does not pay or has no other property to pay,on the basis of the priority of the bankruptcy fee,the ship shall be auctioned and repaid the remaining price to the trustee in bankruptcy after paying the cost of bankruptcy.In addition,the bareboat can be arrested and auctioned in maritime claims' preservation and execution.According to the claim analysis,it is found that when creditors apply to arrest or auction a bareboat under the right of maritime lien,it is contrary to the exercise of the bankruptcy recall right,which would not happen in a common business bankruptcy.By comparing the rights of the maritime lien and the right of bankruptcy recall right,the maritime lien gives priority to the bankruptcy recall right.The fourth chapter discusses the bankruptcy liquidation of the bankrupt shipping enterprises.The exemption right system in the bankruptcy law is applicable to maritime security property right,in which maritime lien is prior to other rights while the labor claim and the national tax are the first and second positions of the liquidation sequence.In the general bankruptcy liquidation,the bankruptcy law also stipulates that the labor claim and the national tax enjoy the priority.When labor claims and national tax that are not fully paid in the liquidation of exemption right become the general claims,although these two claims lose the priority of compensation,its nature of claims remains unchanged.It can enjoy the priority of repayment in general bankruptcy liquidation again,which is consistent with the legislative intent of the bankruptcy law.Another special legal system in maritime law is the system of the fund of liability limitation for maritime claims.The fund established by a bankrupt shipping enterprise should belong to the bankruptcy property.From its characteristics,it can beregarded as the bankrupt property where the restrictive creditor enjoys the exemption right.When the fund of liability limitation for maritime claims and maritime lien that applies the compensation priority of exemption right exist at the same time,the limitation fund is prior to the exemption right when they pay off the maritime claims which belong to the restriction claims and maritime lien at the same time.In bankruptcy liquidation,it is possible to apply analogical reference to the exemption right system in bankruptcy proceedings.The fifth chapter discusses the countermeasures for the relevant legal issues of shipping enterprises' bankruptcy.The maritime laws and regulations exist many conflicts with the bankruptcy law,which causes the inconvenience of law application.For there is a request for respecting the non-bankruptcy regulations principle,achieving the balance of interests of bankruptcy cases,following the principle of fair and efficient settlement mechanism and developing the maritime litigation special jurisdiction through the clear development of the regulations.Therefore,we shall develop specific regulations for shipping enterprise bankruptcy cases,clarify the maritime court's special jurisdiction of shipping enterprise bankruptcy cases,adjust the ship arrest and auction application in bankruptcy cases,and clarify the application of the fund of liability limitation for maritime claims before and after the bankruptcy procedures,so as to make sure there is regulations to abide by and avoid the conflict of law.