| Article 2 of “Chinese Maritime Code” provides that “the provisions of Chapter IV of this Law‘on contracts of carriage of goods by sea’ shall not apply to the carriage of goods by sea between ports of China.” That is,Chapter IV of the “Maritime Code” does not regulate the domestic carriage of goods by water in China.Therefore,the domestic carriage of goods by waterway in China can only be regulated by domestic laws.Prior to the entry into force of the “Civil Code”,domestic waterway cargo transportation disputes could only be regulated in accordance with the “Contract Law” and the“Property Law”(both of which are no longer valid).After the entry into force of the“Civil Code”,the provisions of Articles 447 and 448 on liens continued to follow the former Property Law(which had lapsed),while the carrier’s lien on goods in Article 836 basically followed the former Contract Law(which had lapsed).Shortly afterwards,the Supreme People’s Court issued a judicial interpretation on the application of the “Civil Code” of the People’s Republic of China in relation to the security regime(Hereinafter referred to as the Judicial Interpretation of the Security Regime or Act No.28),which led to changes in the carrier’s lien on the goods in terms of the ownership of the goods subject to the lien and the same legal relationship than before.Coupled with the fact that most disputes over the carrier’s lien on the goods arise in the commercial sector,some of the problems faced by commercial liens can also have an impact on the carrier’s lien on the goods.Therefore,this article focuses on the analysis of the carrier’s cargo lien in domestic waterway transportation based on the clarification of the nature of the lien through the research methods of historical inquiry,case study and comparative method.It mainly deals with the specificity of the constitutive elements of the carrier’s lien on goods,the lien on goods under the contract and the "same legal relationship" in the commercial lien and the lien on goods.In order to clarify the relationship between the contractual and property provisions of the “Civil Code”.At the same time,the paper examines whether the above-mentioned problems have been solved after the entry into force of the “Civil Code”,taking into account the judicial practice and the purpose of the legislation;in order to play a role in the improvement of the system of carrier’s lien on goods in China and the maintenance of the safety of shipping transactions.Unless otherwise indicated,the lien of the carrier’s goods in this article refers to the lien of the carrier’s goods in domestic waterway transport.Apart from the introduction and conclusion,the paper is divided into four chapters,as follows.The first chapter is an overview of the carrier’s lien on goods.It starts with the origin of the lien,a comparative analysis of the two legal attributes of the lien on goods,and a comparison between the lien in common law countries and civil law countries as well as in China,to clarify the nature of the lien on goods in China;at the same time,it compares the difference between the constituent elements of the lien in civil law and the constituent elements of the carrier’s lien on goods,and identifies the special characteristics of the constituent elements of the carrier’s lien,as the the basis for the following chapters.Chapter 2 focuses on an analysis of what judicial practice reflects in the decisions of different courts in disputes relating to the carrier’s lien on the goods As the carrier’s lien on goods is mainly expressed through a commercial lien,This chapter therefore focuses on a comprehensive analysis of the case of a carrier’s lien on goods as a commercial lien and the identification of problems.Chapter 3 addresses the problems embodied in judicial practice in Chapter 2,and uses the commercial lien in the “Civil Code” as the keynote to analyse the problems that have always existed with respect to the subject matter,the object of the lien and the same legal relationship of the cargo lien,as well as briefly analysing the relationship between the carrier’s cargo lien and the contract of carriage.Chapter 4 focuses on the new provisions on the carrier’s lien on goods in its property,contract and judicial interpretation of the security regime after the entry into force of the “Civil Code” and compares them with the previous two chapters to see whether the issues in the previous two chapters have been clarified after the entry into force of the “Civil Code” and what the new provisions mean in relation to the previous issues.Finally,there is the conclusion,which summarises and clarifies what has been said.It is considered that there are no fundamental changes in the provisions of the “Civil Code” in relation to the carrier’s lien on goods compared to the previous one;however,there are changes in the judicial interpretation,so a reasonable interpretation of the relevant provisions of the “Civil Code” in conjunction with the judicial interpretation is necessary for the exercise of the carrier’s lien on goods. |
