Research On The Exercising Of Maritime Lien Under The Cross-border Bankruptcy Stay Rules

In recent years,the global economy has continued to slump many international shipping companies have encountered operating difficulties and embarked on the road of bankruptcy.As the core property of shipping companies,ships are often the primary focus of disposal in bankruptcy proceedings.In maritime trade,because the creditor needs to realized maritime liens by arresting the ship,which can ensure the realization of the creditor’s right.The creditors are more willing to protect their rights by establishing the ship’s lien on the ship.In cross-border bankruptcy proceedings,in order to prevent individual creditors from paying off,and protect the debtor’s property,The stay rules is often prescribed to lift the preservation measures existing on the debtor’s property.This leads to the risk of the ship lien holder being released or unable to realize the ship arrest after the shipping enterprise enters the bankruptcy procedure,so that the ship lien as a special right in maritime law is difficult to realize under the cross-border bankruptcy stay rules.Courts in various countries have realized the drawbacks of rigid enforcement of the bankruptcy stay rules,and have taken different measures in judicial practice to ensure that the maritime lien can complete the arrest of the ship exempted from the execution of the stay rules.In addition to the introduction and conclusion,this paper is divided into four parts.The first part mainly analyzes the obstacles to the exercise of maritime lien under the cross-border insolvency stay rules.Firstly,it expounds the practical inconvenience caused by the ambiguity of the basic definition of maritime lien,and the way that maritime lien is exercised on the basis of ship arrest.Then it is clear that the stay rules established in bankruptcy proceedings to prevent individual creditors from paying off and maintain the integrity of the debtor’s property may release the arrest of the ship and thus hinder the realization of the maritime lien.The second part analyzes the reasons why the exercise of maritime lien under the cross-border insolvency stay rules is hindered.The reasons mainly include two aspects.The first reason is the conflict between the "action in rem" of maritime procedures and the "action in personam" in bankruptcy procedures.The property preservation theory of the civil law system is embodied,and the bankruptcy procedure is centered on the ship enterprise.This function will be impaired after the ship is arrested.The third part mainly analyzes the experiences of various countries in safeguarding the exception of maritime lien to the exercise of the suspension rule.In judicial practice,countries have realized that the rigid suspension of rules in cross-border bankruptcy is detrimental to maritime liens,so they all provide special protection for maritime liens,especially for ships that have been arrested through maritime procedures.Exemption from the stay rule,allowing priority holders to continue to exercise their maritime lien in admiralty proceedings.Although countries have reached an agreement on safeguarding the exception of the ship’s lien that has been arrested and the implementation of the insolvency stay rule,the safeguarding methods of each country are different.The exercise of maritime lien is guaranteed,while other non-adopting countries mainly rely on their own laws such as the Bankruptcy Law and the Company Law to guarantee the exercise of maritime lien.The fourth part is the judicial practice status and improvement suggestions of our country’s maritime lien under the bankruptcy stay rules.Since China adopts a strict factual reciprocity review standard for the recognition and relief of cross-border bankruptcy,China lacks cases of dealing with the bankruptcy of cross-border shipping companies,and the issue of how the shipping lien is exercised under the bankruptcy stay rules can only be learned from domestic shipping bankruptcy cases.The courts of our country also take the attitude of protecting the maritime lien in judicial practice,but the local courts have adopted different interpretation methods when dealing with the exemption of the maritime lien from arrest,which caused certain inconvenience.This part refers to the experience of various countries on the basis of the previous article,summarizes the shortcomings of our country,and provides perfect suggestions for the protection of China’s maritime lien under the cross-border bankruptcy stay rules.