摘要
船舶留置权是担保造船人、修船人债权的船舶担保物权,船舶扣押是法院为保障海事请求人的海事请求而采取的保全措施。当法院扣押修理中的船舶,船舶留置权与船舶扣押就会发生冲突,因为关于留置权人在船舶扣押前没有行使船舶留置权而在船舶扣押后是否仍享有该留置权的问题,法律没有规定。主要从占有和优先受偿两个方面分析船舶在扣押后继续停留在修船厂时留置权人的权利,并对船舶在扣押后离开修船厂的弊端及避免纠纷的措施进行探讨,指出船舶扣押前留置权人未行使船舶留置权的,船舶扣押后留置权人对船舶丧失了占有,但其相关债权对船舶价款仍享有优先受偿权,而且船舶在扣押后不应离开留置权人的修船厂,除非扣船请求人提供担保。
The possessory lien on ship is a kind of real right of security on ship which guarantees ship builder＇s and repairer＇s credit. The arrest of ship is the preservation measure adopted by the court to guarantee maritime claims. There could be conflicts between the possessory lien on ship and the arrest of ship when a ship in repairing is arrested. The reason is that there is no provision on the issue whether alienor who hasn＇t exercised the possessory lien before the arrest of a ship can claim for it after the arrest. This paper focuses on what rights the lienor may claim in respect of possession and priority in compensation, what disadvantages may arise if the said ship leaves the yard, further more, what measures may be taken to avoid the disputes when an arrested ship continues to stay at the ship-repairing yard. The conclusion is that a lienor failing to exercise the possessory lien before the arrest still has the priority from the sale of the subject ship in spite of his loss of the possession, and the ship may leave the yard only when an appropriate security has been offered.
出处
《中国海商法年刊》
2009年第4期30-34,共5页
Annual of China Maritime Law
关键词
船舶留置权
船舶扣押
占有
优先受偿
possessory lien on vessel
arrest of vessel
possession
priority in compensation
