船舶優先特權과 實行上의 諸問題에 관한 硏究

Abstract

Maritime lien means a statutory security right with a priority to any other right to vessel and its adjuncts which admits a person having a specific maritime claim to be paid before any other creditors.

Maritime lien with a priority not having a public notice may damage to the other creditors. And the ship's arrest for the enforcement of maritime lien may stop the ship's operation. So adjustment of the interest between the person concerned is requested.

Maritime lien's recognition was found in the theory of procedural, personification, Conflict, and now in the special circumstances of the maritime corp., limitation of the ship owner's liability, public policy, causam pignoris facere etc.

Claims with maritime liens are discussed for the adjustment of interest between a liener and any other creditor. The Commercial Law at art 861(1) provides the claims for which a maritime lien is risen

Indemnities for collisions and for damage caused to voyage facilities, harbour facilities and navigable ways by other accident of navigation, indemnities for personal injury to passenger or crew.

A suggestion to the legislation of the claims is in the adjustment of the claims' scope and rank, of the scope of debtor, and the differentiation of maritime liens.

The conflict if interest between owner and liener is shown in the enforcement of maritime lien. For the owner, (1)the order of delivery of a ship's nationality certificate before the application of the sale, (2)the order of anchorage, (3)the order of receipt of a ship's nationality certificate, and (4)the measure of watching and preserving are prescribed.

A suggestion to the legislation of the enforcement of maritime lien is in the deletion of the application of mortgage(art 681(2) second sentence), the deletion of the prohibition of arrest, the revision of the admission of navigation, the prescription for the withdrawal of the arrest by security letter and the certificate for no-security right and ship registration.

Remuneration for salvage and the contribution of the vessel in general average

Calms arising out of the contract of engagement of the crew and other persons hired on board

Law costs due to the State incurred in the common interest of the creditors, expenses incurred in the sale of the vessel and its adjuncts, public taxes to the vessel for the navigation, pilotage and towage dues, the cost of watching and preservation from the time of the entry of the vessel into the last port