Research On The Realization Of Maritime Lien In Shipping Insolvency

Maritime lien is an ancient and unique system in maritime law.In order to promote the development of maritime industry and guarantee the safe navigation,it is necessary to give certain special protection to some matters that can affect maritime security interests.Hence,the maritime lien has been developed.The creditor secured by the maritime lien has the priority right to be paid to the ship with the maritime lien.For the simple maritime case,the realization process of maritime lien generally does not bring disputes,the Special Maritime Procedure Law of the People's Republic of China has the explicit stipulation regarding this question.However,in the case of enterprise bankruptcy,the realization process of maritime liens becomes uncertain because of the participation of bankruptcy procedures.The realization of maritime lien in the bankruptcy of a shipping enterprise mainly involves the conflicts of jurisdiction,trial,preservation,implementation,and compensation.This paper mainly discusses the aforementioned conflicts and analyzes and references lessons from the judicial practice of other countries.This paper attempts to propose a solution for the coordination of bankruptcy procedures and maritime procedures in China.This paper studies the realization of maritime liens in domestic insolvency procedures using methods,such as literal interpretation,caseanalysis,comparative study,and induction.This paper analyzes and discusses the problems involved in the realization of maritime lien in bankruptcy from the perspective of the conflict of procedural law.The first chapter mainly summarizes bankruptcy and the realization of maritime liens.The related concepts and the research scope of this paper are defined,and the procedural conflicts involved in the procedure of the realization of maritime lien in maritime bankruptcy cases are analyzed.The basic reason for the conflicts lies in the different legislative purposes between the bankruptcy law system and the maritime law system.The different legal policies behind the two systems lead to conflicts between them.This chapter also summarizes the basic principles and special principles of the application of law when the two legal systems intersect.Generally,in respect of substantive rights,the rights under maritime law take precedence over the insolvency law;in respect of procedural rights,the provisions of the bankruptcy law shall prevail.However,when it comes to maritime liens,the particularity of maritime liens should be taken into account and the aforementioned principle can be broken.The second chapter mainly discusses the jurisdiction disputes in the case of maritime bankruptcy.The issue of jurisdiction is the basis of solving the other issues of maritime liens in bankruptcy cases of shipping companies.When determining the jurisdiction of the bankruptcy court for the case,the jurisdiction of the entire bankruptcy case and the jurisdiction of the maritime lien litigation should be distinguished.According to the basic principles of application of law,the provisions of the bankruptcy law should be applied in priority with regard to procedural rights.Therefore,from the perspective of the application of the law,the jurisdiction of the entire maritime bankruptcy case should belong to the local court rather than the maritime court.However,it is still controversial as to which court the jurisdiction of the maritime lien litigation belongs to.Then through the analysis of the relevant judicial practice in the United States,drawing on its experience,and combining with Chinese practice,it is concluded that the maritime lien should be under the jurisdiction of the maritime court.The third chapter mainly discusses the conflict between the way of exercising the maritime lien and the automatic suspension of the bankruptcy system in the case of maritime bankruptcy.By comparing the practices of the United States,Germany,and Australia,and drawing on their useful experience,we have come to the conclusion.During the period between the acceptance of the bankruptcy application and the final declaration of the bankruptcy procedure(liquidation,settlement,reorganization),according to the application of the creditors secured by maritime liens,the ship that has been arrested by the maritime court cannot be released,and for the ship which has not been arrested,creditors secured by maritime liens can still apply to the maritime court to arrest the ship.When the bankruptcy procedure is declared as a liquidation and settlement procedure,the seizure cannot be released in principle,and when it is declared as a reorganization procedure,the seizure can be released in principle.The fourth chapter mainly discusses the conflicts and settlement paths between the registration of the claims and the order of repayment in the maritime bankruptcy.By analyzing we can get the conclusion.If the lawsuit has been filed in the maritime court before the bankruptcy of the enterprise,the maritime lien litigation should be suspended after the application for bankruptcy is accepted.The maritime court should notify the maritime lien person to declare the credit to the manager and the case continues to be tried by the maritime court after the manager takes over the debtor's property.If the ship has been applied for auction in the maritime court and the auction announcement is issued before the bankruptcy of the enterprise,the maritime lien person still needs to register the claims with the maritime court after the application for bankruptcy was accepted.Additionally,the execution procedure of the ship auction should not be suspended,and the register of the claims and the price of the auction should be transferred to the bankruptcy court.The maritime lien person who registered the claims can filed a right confirmation suit in the maritime court.Maritime lien has priority over mortgage and lien for compensation because it is a special security interest.