| The possessory lien on vessel,as an important legal mechanism of real right on vessel,is a particular embodiment of the concept ofcivil law lien in the maritime laws.Being a statutory real right for security and also a reliable and effective security mechanism,the possessory lien on vessel played an irreplaceable role in securing the interests of maritime claimants as well as in maintaining the order of the economy and society and carrying forward the spirits of law – justice,equality and honesty.However,such an important mechanism of security is only provided for in one paragraph under the maritime laws without any clear provisions concerning those legal issues on its definition,scope of application,procedure of enforcement,etc.,which leads to a result that the possessory lien on vessel is rarely exercised in the maritime practice.At present,our country implement the strategy of sea power,vigorously promote the development of marine economy and without a good legal protection and talk about Marine economy development."Maritime law" was enacted as early as in 1992,and more than 20 years has past,it is far behind the development of the economy.Unable to follow the pace of The Times,it even will affect the development of the economy.As in 2007,the promulgation and implementation of the " Real rights law" of its regulations on lien is more detailed,and the rules for discussed with lien has established,especially the applicable scope of lien is not limited to the three kinds of contract,but to further enlarge the lien scope including but not limited to the contract,tort,etc.It can be seen that lien in civil life as an important form of guarantee,to protect the interests of creditors,enhance the role of the trade efficiency is more and more big.And possessory lien on Vessel as a special law regulation of the real rights security interests,still under the "maritime law" of a regulation is too thin,and is not conducive to protect the interests of the creditors or improve the efficiency of deals.It is fair to say that the function and value of the possessory lien on vessel is far from being realized in practice.The reason for such situation is mainly that the legislators in China did not pay attention to the effect of the possessory lien on vessel but over-protected the interests of the persons those who are entitled for the maritime lien and mortgage on vessel,which may prevent the person who potentially has the possessory lien on the vessel from timely exercising such right.This is an obvious legal loophole pending further amendment.In the light of the foregoing,this paper is for the purpose to discover and solve the issues in different layers on possessory lien on vessels by analyzing and discussing the current statutory rules and academic opinions on it.This paper also aims to promote the improvement of the legal mechanism of possessory lien on vessel under the frame of the maritime laws of China so as to effectively protect the lawful interests of the person entitled for a possessory lien as a security to their claim.The paper is divided into five parts.The first part focuses on the brief introduction and analysis one some basis theoretical princpals basis,including the general introduction of the lien and of possessory lien on vessel as well as analyzing the legal provision and the defect,etc.;the second part is aiming at the defects in legislation concerning the possessory lien on vessel;the third part discuss the issues on the application,existence,diminish,realization,the procedure,the order of the repayment as well as other issues as to whether the vessel under construction can be liened,whether the commercial lien under the Real Right Law is applicable to the possessory lien on vessel,etc.;in the fourth part,the author will proposeseven suggesting amendments regarding the possessory lien on vessel;the fifth part,which is also the conclusion of this paper,presents the opinion of the author on the improvement of the mechanism of the possessory lien on vessel in China. |
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