The Possession Lien On Cargo In Carriage By Sea Under The Real Right Law

The possessory lien on cargo in carriage by sea, as one of the important maritime trade legal system, whose exercise is not only for the protection of creditors, but also for safeguarding the legitimate interests of debtors. However, our country’s maritime law does not establish sound regulations of it, which causes great difficulty in practice. The corresponding provisions of the Civil Law, Contract Law, Guaranty Law and Maritime Law to have a lien, but various legal provisions of the lien is slightly different, and haven’t built a comprehensive maritime cargo lien right system yet. Relying solely on Maritime Law Article87and88of the law simply can not solve the problem of maritime practice complex marine cargo lien. This quite limited the maritime cargo carriers are legally entitled to exercise a lien. The result will also prejudice the legitimate interests of the carrier, help the debtor to evade the debt, seriously affect the development and prosperity of our seaborne trade.In this paper, based on the Property law perspective, earnestly to the maritime lien system analysis and research deeply about entity, procedure etc. I believe, Chinese current Maritime Law just has simple rules on maritime lien, and did not consider the reality of the shipping trade in our country, there are some legal loopholes and gaps which seriously affected Chinese establishment of marine cargo lien legislation intention and its realization, bring more damage to its full function and Realization of the right to. In fact, Property Law is the common law, Maritime Law is a special law. In the trade activities at sea, as long as the Maritime Law does not expressly or banned, we can relate the Property Law to the relevant provisions of lien on cargo, maritime lien. Therefore, this article is written from the basic theory of the right of marine cargo lien system, and analysis deeply, discusses Property Law to the Guaranty Law, Contract Law and The general principles of the civil law in the lien system breakthroughs and innovation, summarized the lien rights and obligations of both sides. Finally, the combination of Property Law in the lien on the breakthrough and innovation, and consideration of the problems which occurred in the judicial practice, have pointed out that defects of Chinese Maritime Law in the legislative, which concerning maritime lien right system and shortcomings, and puts forward suggestions to perfect it and corresponding measures, improves hope to promote the maritime lien system of lien, ensure legitimate rights and interests of the parties which focuses especially on the legitimate interests. Only in that way, we can promote the rapid development of our country’s maritime trade.