"Abstract" "A sign of social development is not what people produce, but what tools people use to produce". Legal research methods, to a great extent, mark the development level of legal research and directly affect the research conclusions. However, the issue of research methods seems to be the patent of jurisprudence, which has not yet attracted sufficient attention from the department law research. Accustomed to comparing the concepts of legislative norms in various countries is a major mistake in comparative law methods, which often leads to wrong conclusions in the comparative study of specific systems. The system of lien on goods at sea studied in this paper is in the gap between the civil law system and the common law system, and the defects in research methods have a more prominent impact on the conclusions of the system research. Only by completely changing the thinking habits and research methods, and reviewing the lien systems of various countries with a real comparative method, can we get the answer to the question. Starting from the theory of comparative law method [①], this study attempts to use the "functional comparative law" to observe and learn from foreign legislation, interpret and construct domestic systems, providing an annotation for the functional comparative research method.

"Key words" Comparative method, lien, system function

The Maritime Code of the People's Republic of China has set a precedent for translating international conventions directly into domestic legislation in China, and has become the first legislation in mainland China to systematically introduce the British and American law system. Among them, the maritime cargo lien system [②] originates from the Possessory Lien, a branch of the British property security system priority [③] (Lien), and has many important differences from the civil lien system originating from the civil law system. However, due to the defects in terminology translation, the concept of "possessory lien" has the same sign as the concept of "lien" in China [④], resulting in the addition and omission of the connotation of "possessory lien" in the transplantation; However, domestic civil law scholars and maritime law scholars are limited by the civil law lien system and the Anglo American priority system respectively, and lack comprehensive understanding and comparative research on the lien systems of the two major legal systems; Moreover, because our research method on the lien system of the continental law system is trapped in the "conceptual comparison method", and has not gone deep into the function of the lien system of various countries, the theoretical reference system used to explain the characteristics of our maritime cargo lien system is "version distortion". In the practice of maritime trial, the characteristics of the civil lien system are set up at the same time under the condition of incomplete information. To explain the lien system for goods at sea, it is unable to maintain the internal logic consistency of the norms, which destroys the integrity of the function of the lien system for goods at sea. This article attempts to use the theory of comparative law method, starting with the comparative research method of the lien system, tear off the label of the concept of "lien" in the legal structure of the civil law countries, and adopt the "functional comparative method", that is, take the legal relationship regulated by the lien system of our country as the object to analyze the transportation, custody The specific methods to protect specific creditor's rights in legal relations such as processing and contracting, from which we can find out the common features of the functional setting of lien systems in civil law countries; On this basis, it compares the differences between the lien on goods at sea in the continental law countries and the civil lien system in their countries, as well as the correlation between the lien on goods at sea and the possessory lien system in the Anglo American law, explains the special nature and function of the lien on goods at sea relative to the civil lien, and provides a more comprehensive and true version for explaining the lien on goods at sea in China; This article will also study the legislative features of the maritime cargo lien system in the continental law countries in terms of specific function settings, especially the coordination and complementary advantages between the "lien" system and the priority system that constitute the maritime cargo lien system in protecting the creditor's rights of the carrier and the shipowner, As a reference to improve our maritime cargo lien system.

1、 A Review of the Comparative Research Methods of the Lien on Maritime Goods in China

It is generally believed that the system of lien in the civil law system can be divided into two legislative examples: the lien in the German and French civil laws is the lien of creditor's rights, and the lien in the Swiss, Japanese and Taiwan civil laws is the lien of real rights. [⑤] This division theory is also often used to define the characteristics of the maritime cargo lien system in civil law countries. The "property right" lien theory has become the basis for explaining the characteristics of the maritime cargo lien system in China in practice. [⑥] For the time being, regardless of the vital influence of the different legal sources of China's maritime cargo lien system and civil lien system on the connotation and function of this system, just from the perspective of the "civil law lien theory" referred to by China's civil lien system, this division also has major defects, It can not provide an accurate reference frame for the study of China's maritime cargo lien system.

（1） A Query on the Division of "Creditor's Rights" and "Property Rights" of Lien in the Continental Law System

The division of "creditor's right" and "real right" of lien in the above theory is based on whether the national legislation endows this right with the effect of the claim in rem. The lien in France and Germany is considered to have the effect of only retaining the goods as a defense of performance, but not priority, so it is classified as a "creditor's right" lien. This right can only fight against the debtor, but not against the third party outside the creditor's right and debt relationship; However, the lien in Switzerland and Taiwan has the above dual effects: the right to retain the subject matter is used as the defense of the other party's failure to perform the debt, and the right to sell or auction the subject matter of the lien is used as the guarantee of the creditor's rights after a certain period of liquidation. Since this right has priority over other creditors, it has a worldwide effect, which is called the real right effect, so it is classified as "property right" Liens.

However, if this is the standard, the "property right" of Japanese lien will be difficult to explain. There is no doubt that the Japanese Civil Code lists the lien in the real right chapter, and there is no basis for denying its real right nature. However, as scholars have seen, the real right nature of Japanese lien is only manifested in the effectiveness of its possession, that is, the effectiveness of the subject matter of the lien against others' infringement of its possession during the period of retention, and it is eliminated due to the loss of possession; The lien holder is not able to control the use value and exchange value of the subject matter, which is interpreted as not having the right of claim on the matter, so "it is not so much a real right as a right of defense of the real right" [⑦]

Taking the German lien system as an example, it is also inaccurate for Chinese scholars to define the German lien as "creditor's right". According to Article 273 of the German Civil Code, the civil lien is only the right of defense for the performance of a bilateral contract, that is, the party who cancels the possession of the subject matter in a non infringing manner has the right to retain the subject matter when the other party has not paid the monetary debt, in order to meet the demand of the other party for payment, as a means to urge the other party to perform the debt or provide security for the debt. The civil lien system does not give the lien holder the right to obtain the debt payment by selling or auctioning the subject matter. However, the commercial lien has the same liquidation procedure as the pledge which belongs to the real right, and has the priority of repayment in fact. The commercial lien in Germany has three effects: first, the defense of the right of return is often realized by the judgment of simultaneous payment; Second, the right to dispose of the subject matter of the lien can be realized by compulsory liquidation and self sale liquidation. The former may claim the realization of the creditor's rights due to the action of the debtor; The latter is similar to the effect of pledge, which is realized by the parties themselves selling the subject matter; Third, the right of priority, that is, when the debtor declares bankruptcy, the commercial lien, like the pledge, grants the creditor the right of priority to pay off the subject matter of the lien. The pledge in Germany is a kind of real right for security, and the commercial lien actually has the same nature and function as the pledge. This is the most prominent difference between the commercial lien and the civil lien in many different legal features, which is enough to challenge the "creditor's right" theory of German lien.

Not only that, what is worth further investigating is the German legal pledge system, because the legal relationship it regulates coincides with the scope of the adjustment of the lien system in China - custody contract, transportation contract, contract of undertaking and agency contract, German commercial law gives the party who pays services or expenses in advance for the performance of the contract in these contractual relationships the right to retain the subject matter and realize the price under legal conditions to receive priority compensation. Article 410 of the German Commercial Code stipulates: "If the transporter still possesses the goods, especially has the right to dispose of the goods by virtue of the carrying securities, the notice of delivery or the warehouse receipt, the transporter has the right to pledge the goods as long as it is based on transportation services, commission advances or fees, and the payment for the goods.". In addition, the scope of legal relationship regulated by the provisions of Article 397 of the German Commercial Code on the legal pledge of brokers, Article 421 on the legal pledge of warehouses and maritime law is also the same as the scope of application of China's civil lien system. However, in the Civil Code, there is only one such legal pledge, that is, the processing contractor's legal pledge of processed goods as stipulated in Article 647. [⑧] However, Germany classifies this system into the category of priority, that is, possession priority (Besitz pfandrecht). [⑨] Obviously, the legal pledge of Germany has been generally ignored in the comparative study of lien system in our academic circles.

Here is a question: On what basis is the theory of "creditor's right" and "real right" division of civil law lien established?

The author takes the liberty to call the basis of this division method "conceptual comparison method", that is, the basis of this division theory is based on whether there is a "lien" concept label in the articles of the civil codes, and only analyzes the articles under the symbol of "lien" in civil law countries to find out the similarities and differences between them. Since then, the "lien" of Switzerland and Taiwan has not only the effect of simultaneous performance of defense, but also the effect of the second level, that is, the priority to obtain the right to pay off the creditor's rights through selling the lien; The system function under the concept of "lien" in France and Germany only has the effect and function of simultaneously performing the right of defense.

"Conceptual comparison method" is a common mistake in the method of institutional comparison research. The term symbol it relies on is the label affixed by legal translators when transplanting or interpreting the system. Without realizing this problem, conceptual comparison may fall into the trap under this label. What is more noteworthy is that the Maritime Code adopts two different labeling methods in the translation of "Lien" [⑩]. Maritime Lien and Possessory Lien, both branches of the Lien system of Anglo American law, are translated into "priority" and "lien" respectively when transplanting the system of the Maritime Code - Maritime Lien does not have to rely on possession (lien) The subject matter shall be given priority in accordance with the order stipulated by the law. In the case that there is no translation of the existing legal concept in China, it is translated as "priority" according to the original meaning of Maritime Lien [11]; Posessory Lien, on the other hand, has to attach or possess the thing to produce the right of priority. This function is somewhat similar to the characteristics of lien in China and is translated as "lien" [12]. This translation is a "functional translation" of the same or similar concepts, Many differences between the Posessory Lien system of Anglo American law and the civil lien system of China are virtually erased with the equivalence of concepts; On the contrary, although the legal pledge system in Germany has many characteristics of the lien system in China, it is completely excluded from the scope of comparative study of the lien system because of the differences between concepts. This situation should be paid special attention to in China, where legal transplantation is the main way to construct the legal system. [13]

So, what is the purpose of comparative study of lien system? What kind of reference does this division of "property right" or "creditor's right", which is limited to the analysis of the legal structure of lien in various countries, have for the study of our country's lien system? Let's start from the purpose of comparative law to discuss the method of comparative law.

（2） A Comparative Study of the Functions of Liens on Goods at Sea in the Continental Law System

Comparative jurists point out that "the object of legal science is not the legal structure of concepts, but the life problems that these legal structures should solve." Therefore, "The problem of comparative law is not about the conceptual structure of the legal systems of different countries, but the function of their legal systems. The method of comparative law is to re compare the solutions to problems of different social orders from their respective realities, and from the social purposes they achieve.". [14]

At present, the purpose of comparative study on the lien system of goods by sea in various countries is to seek specific measures to protect the creditor's rights of the carrier and the lessor in the relationship of carriage of goods by sea. To be specific, the Maritime Code stipulates that the carrier and the lessor can exercise "lien" based on certain creditor's rights, but the nature, effect, establishment conditions, realization method of the lien, and the relationship between the creditor's exercise of the lien and the court's seizure of goods all depend on legal interpretation. Through comparative study, on the one hand, we will find the legal transplant origin of the concept and system of lien on goods at sea in China, and provide the system basis for "comparative law interpretation"; At the same time, it selects the benefit maximization scheme from the legislation of various countries to provide system reference for improving our current maritime cargo lien system.

However, the real problems in these comparative methods cannot be solved by using the "conceptual comparative method", because the method of conceptual comparison is not so much a "comparative study" of national systems as a visual introduction of national legislation, It "generally explains the legal solution to a certain substantive problem in a certain legal order, but it is elaborated from its own perspective, using the rules of its own statutory law or case law, its own concepts, and its own system"; All this means that "only the differences and similarities are listed as a table of contents. In fact, this is just a more obvious way to repeat what has been contained in national reports" [15]

Furthermore, the comparative study of systems based on concept labels is invalid because it is impossible to find a common "substantive issue", that is, the object regulated by law - legal relations, from the perspective of national legislation. For example, the substantive issues of German "lien" include the protection of the creditor's rights of both parties in all bilateral contracts, while the "lien" of Switzerland and Taiwan only includes the protection of the creditor's rights of one party who has paid labor or expenses for the performance of the contract, such as transportation, storage, processing contract, etc. Therefore, the effect of the former only lies in providing both parties in the bilateral contract with the right of defense of simultaneous performance, while the effect of the latter, in addition to the defense of "simultaneous performance", also gives the creditor who has partially performed the contract before performing the delivery obligation the right to obtain real right security. The scope of adjustment of the former is much wider than that of the latter. So, just from the perspective of the special legal relationships adjusted by the latter, how does the country implementing the so-called "creditor's lien" protect the creditor's rights? That is to say, do these countries have other protection methods for the creditor's rights in the contract of transportation, storage and processing, except for the system under the label of "lien"? Are they protected preferentially by the system set in other names in their own country besides the lien system?

The "functional comparison method" takes a common perspective to observe different solutions to similar problems. This "common perspective" is "those living phenomena that often hide behind the concept of national system and escape people's attention". From the perspective of the comparative study object of the lien system, this "common perspective" is the legal relationship of transportation, processing, contracting and storage contracts that are regulated by the lien system in China. These contracts, which are regulated by systems under different legal concept labels in various countries, have some common characteristics:

First, they have the common characteristics of general bilateral contracts, that is, both parties shall perform their contractual obligations at the same time, and one party shall deliver the subject matter of the contract and the other party shall pay labor remuneration or expenses at the same time. If the party who should pay the remuneration or expenses fails to perform its obligations, the law gives the other party the right to refuse to deliver the goods, such as the right to retain the goods, as a defense to the performance, thereby forcing the other party to perform the contract or provide security. At the same time, the function of the system of performing the right of defense is to protect the balance of the purpose and interests of the bilateral contract and prevent one party from failing to perform its contractual obligations to cause unreasonable economic losses to the other party.

Second, they have different characteristics from ordinary bilateral contracts: one party's contractual obligations are divided into two parts: providing labor services and delivering the subject matter. The obligations of the previous stage have actually been performed first before being "performed simultaneously" with the other party. If the other party fails to perform its contractual obligations, the "purpose interest" of the creditor in signing the contract cannot be balanced by refusing to deliver the subject matter, so the law must provide fair relief for the services or expenses that he has paid for the performance of the contract.

The second level of effectiveness of the "real right" lien bears the function of protecting the creditor's priority from the lien, and makes up for the deficiency of the "simultaneous performance of the right of defense" system in protecting this kind of creditor's rights [16]. So, how does the country implementing the so-called "creditor's right lien" system solve this problem?

To find the answer to this question, "We must liberate ourselves from all the systematic concepts of the legal order of various countries, get rid of the shell of their purely domestic dogmas, and finally be unique from the functional perspective, from the perspective of meeting their respective legal needs. Each solution is a unity in terms of its function, and should be included in the scope of comparison, although in the legal order of each country, the various measures and components of its solution are different from each other in terms of system... Experience and facts show that there is no connection with the function but only comparison of various solutions, that is, It is seldom beneficial to just compare all solutions, or even lead to mistakes. " [17]

Therefore, from another perspective, the author starts from the scope of the legal relationship regulated by the lien in our country, and goes back to the civil and commercial codes to find the answer. It is found that in countries where the so-called "creditor's right lien" system is implemented [18], priority system has assumed the second level function of "real right lien" - priority of repayment. Moreover, the concept of priority system in various countries is also different. It is called "priority of specific movable property" in France, "legal pledge" in Germany, and "priority of first refusal" in Japan. However, these countries have given priority protection with the meaning of security interest to the creditors of transportation contracts, custody contracts, processing contracts (some included in agency contracts). Taking Germany as an example, the difference between legal pledge and agreed pledge is the basis for the emergence of pledge, and there is no difference in legal effect. The reason for the provision of legal pledge is that in the above types of contractual relationships, there is always a phenomenon that one party must perform first and wait for the other party to pay later. The act of performing first is generally manifested as labor. After the other party performs, there is doubt whether the other party will pay, thus forming obstacles to the realization of the interests of the first performer. Proceeding from the idea of strengthening the protection of the interests of paid workers, the German civil law stipulates the legal pledge right, giving the first performer the right to occupy the movable property delivered by the other party and obtain payment from the pledged movable property when the other party fails to perform its obligations. It can be seen that the legal pledge in Germany is the same as the lien system in China in terms of the characteristics of the legal relationship it regulates, the nature and function of the system. Therefore, when seeking the concept explanation and system reference from Germany, we must look beyond the concept of "lien", and at the same time invest in the legal pledge and the agreed pledge system with the same effect as the legal pledge.

Next, the author will use the functional comparison method to conduct an in-depth study of the lien systems in the countries of the civil law system. What needs to be stated is that, in terms of the classification method of lien system, the author disagrees with the classification of "property right" and "creditor's right" of lien. In view of the implementation of the so-called "property right lien" The way of Japanese legislation in setting up two levels of functions of lien on goods at sea - detaining goods for defense and selling liens for protection of priority of repayment - is closer to the legislative style of law and Germany implementing the so-called "creditor's rights lien", so this article follows the legislative style of "separation of civil and commercial" and "integration of civil and commercial" To observe the mode of setting up the function of lien on goods at sea in civil law countries. Another significance of this division is that although China implements the "integration of civil and commercial law", the Maritime Code has become an internal closed system based on China's specific legislative technology (directly transplanted from the whole chapter of international conventions), which is actually independent of other domestic civil and commercial legal systems. The maritime cargo lien system of continental law countries that implement "civil commercial separation" is even further away from their own civil lien system, and closer to the international practice and the Anglo American legal system that forms the basis of international shipping practice, China's maritime cargo lien system directly derived from the Anglo American law is more comparable to it; However, the civil and commercial lien system of "civil and commercial integration" is more similar to our civil lien system. Therefore, this division is more meaningful for the study of China's maritime cargo lien system, especially in emphasizing the difference between the civil lien system and the maritime cargo lien system.

2、 A Comparative Study of the Lien System in the Continental Law System under Different Function Setting Modes

（1） The Function Setting Mode of Lien System under the Legislative Example of "Civil Commercial Division" in the Continental Law System

Taking the legal relationship regulated by the lien system in China - the relationship between transportation contract, custody contract, processing contract and real estate lease contract - as the research object, the continental law countries that adopt the separate legislation of civil law and commercial law are not a single "lien" system to realize the function of maritime cargo lien system, It consists of lien system and priority system under different names.

1. French maritime cargo lien system - lien and specific chattel priority

The creditor's rights that explicitly use the concept of "lien" in the French Civil Code only have the relationship of bailment. Article 1948 stipulates that "if the debts of the depositor to the depository due to the depository are not fully paid off, the depositor may retain the deposit". Obviously, the "lien" right here is only a defense right of simultaneous performance; In the sales relationship, if the seller fails to pay the price or provide security, the seller also has the right not to deliver the subject matter, which is actually a "lien". (Article 1612). The French Civil Code does not give them the right to "retain the subject matter as a defense" with respect to the relationship between the transportation contract, the custody contract, the processing contract and the real estate lease contract. For example, in the regulations of "lease of the object" and "labor lease", the shipowner and the carrier of the transportation contract are not given the right to retain the subject matter. [19]

However, the French Civil Code directly endows the creditor with the priority of specific movable property to the subject matter of the contract for a large number of bilateral contracts, in order to protect the priority realization of specific creditor's rights in this form. The carrier's lien on goods is a special priority system of movable property. Article 2102 stipulates that "freight and incidental expenses shall have priority with respect to goods transported"; For the lessor's rent claim, France has a similar provision: "The supply of hotel owners to passengers has priority over the movable property carried by passengers in the hotel".

In terms of the establishment of the creditor's rights protection system for the carrier and shipowner of the carriage of goods by sea, France has not given these two types of creditors the right of defense to retain the goods in its legislative policy. On the contrary, the French Commercial Law [20] explicitly prohibits the right of defense to directly retain the goods for the other party to perform its debts. Article 3 of the 1966 French Law Society on Contracts for the Carriage of Goods by Sea and Charter Party stipulates: "Unless the charterer has provided a guarantee, if the charterer fails to pay the rent during loading and unloading, the shipowner may deliver the goods to a third party for security or auction, but shall not leave the goods on the ship"; Article 48 stipulates that "even if the freight is not collected, the captain has no right to retain the goods on board".

It can be seen that the French maritime cargo lien system mainly depends on the priority system, and the realization of the creditor's rights of the carrier and the shipowner is borne by the "specific chattel priority" system. Classified from the system function, the security interest of priority has been recognized. Although there are still disputes about the property right of maritime lien in China, there is no doubt about the property right of specific chattel priority in civil law countries, and there are priority claims of similar nature in enterprise bankruptcy laws,

At the same time, we can also see that priority and lien have the characteristics of mutual connection and complementary advantages in function. The priority system is to directly give policy based legal protection to specific creditor's rights, while the lien system actually only provides a legally recognized self-help way for both parties [21]. The reason why the priority system is superior to the lien

The right system lies in its low social cost of giving priority to the protection of specific claims. France uses the priority system to protect the creditor's rights of the carrier and the shipowner, which reflects the legislative purpose of pursuing the maximization of the economic benefits of the system. Because the freight forwarding warehouse is prone to ship stranding, and the cost of handling the lien is expensive, no matter whether the loss is ultimately borne by the ship or the cargo party, it will continue to expand the loss of contract failure and increase the social cost of the transaction. This legislative tendency is worthy of our reference in the judicial interpretation of the way of exercising and realizing the lien on goods at sea in China.

2. German maritime cargo lien system - lien and legal pledge

Compared with France, Germany's maritime cargo lien system is much more complex. It involves the mutual application and compensation of civil lien, commercial lien and legal pledge norms. It is necessary to comprehensively investigate the relationship between these systems. 

The German commercial lien standard stipulates the defense right to detain the goods (i.e. "lien") separately from the right to receive payment for the value of the lien (i.e. "legal pledge"), which creates the illusion that the German lien system is a "creditor's lien". Article 614 of the German Commercial Code stipulates: "(1) When accepting the goods, the consignee shall pay freight and other surcharges or demurrage incurred according to the provisions of the contract or the bill of lading, and shall also reimburse the carrier for prepaid customs duties and other prepaid expenses, as well as bear other expenses that should be borne by it." (2) The carrier shall deliver the goods immediately after receiving the freight and after the consignee has fulfilled its obligations. " In other words, the carrier has the right to refuse to deliver the goods until it receives the above charges or the consignee performs its obligations. Obviously, this is a right of defense for simultaneous performance; However, Article 623 also stipulates: "[Carrier's Lien] [22] (1) The carrier has a lien on the goods in respect of the request specified in Article 614. (2) As long as the goods are under the control of the carrier or the carrier has deposited the goods, the lien exists, but it shall be conditional on the fact that the goods remain in the possession of the consignee within 30 days after delivery and the carrier requires through legal proceedings". 

It can be seen from the provisions of Article 623 that the German maritime cargo lien system shows obvious priority characteristics. Under certain conditions, the creditor's separation from direct possession of the subject matter does not affect the right of priority to be repaid in respect of the subject matter, and the carrier's realization of the priority to be repaid must go through legal procedures. This provision reflects Germany's policy tendency to coordinate the two functions of the lien system, that is, to maximize the transaction and reduce the social cost of transaction failure. The function of the real right for security of lien is to maintain the fairness of transactions and to provide a legal remedy for the loss suffered by the carrier who has provided services and expenses for the performance of the contract due to the failure of the purpose of the contract. However, this function is secondary and remedial, which is a measure that must be taken when the first level function, namely, the basic and primary function, is to promote the realization of this purpose and benefit. The purpose of the contract of carriage by sea was to obtain the goods for the consignee, while the carrier received remuneration. Therefore, German commercial law relaxed the policy on the conditions for the establishment and exercise of the lien. While ensuring the carrier's actual control over the goods, it also left room for the debtor to win the ability to repay debts by disposing of the subject matter, Maximize the realization of transaction purpose, which is less than the cost of the creditor selling or the court auctioning the subject matter to pay off the debts of the lien. The purpose of reducing the social cost of exercising the lien is the same as that of the priority system in France. This provides another version for our judicial practice to learn from the experience of other countries to determine the way to exercise the lien.

3. Japan's maritime cargo lien system - lien and priority

Japan's maritime cargo lien system obviously consists of two parts, namely, the lien system and the preemptive privilege system. The "Lien" system in the Japanese Civil Code stipulates the conditions for the creation and loss of the lien, as well as the rights and obligations of the lien holder during the lien period. This system only has the effect of defense, that is, the effect of the first level of the lien, excluding the effect of priority to be repaid. The Civil Code also does not stipulate the scope of the creditor's rights to exercise the lien, which are distributed in the payment obligations of various bilateral contracts; The system of preemptive privilege will include the lease of real estate, the transportation of goods, the custody of movable property and other creditor's rights that can obtain priority over specific movable property. For example, Article 318 of the Civil Code of Japan stipulates that "the priority of transportation exists on the carrier's belongings with respect to the freight and ancillary expenses of passengers or goods".

In maritime law, lien and preemptive privilege together constitute the total system of protecting the creditor's rights of the carrier. Article 753 of the Japanese Commercial Code stipulates the creditor's right to establish a lien: "(1) After taking delivery of the transport goods, the debtor has the obligation to pay the freight, ancillary charges, advances, berthing fees, general average and salvage charges borne according to the price of the transport goods in accordance with the provisions of the transport contract and the carrying securities. (2) The captain does not need to deliver the transport goods unless he collects the amount specified in the preceding paragraph.". "No delivery of transport goods" is obviously the first level function of the lien as a defense right of simultaneous performance. 

Article 757 of the Japanese Commercial Code stipulates: "[The ship owner's right to auction the transported goods] (1) The ship owner can auction the transported goods after receiving the amount specified in the first paragraph of Article 753 with the permission of the court. (2) The ship owner can still exercise its rights on the transported goods after the master delivers the transported goods to the consignee. However, this restriction shall not apply if the transport goods have been in the possession of a third party within two weeks from the date of delivery. ". This provision, on the one hand, gives the ship owner the right of priority in compensation for specific movable property, that is, transportation goods; At the same time, when the lien is not enough to protect the priority of this creditor's right, it directly gives the carrier the priority that does not need to be based on possession under certain conditions, that is, the privilege of first refusal [23]. This provision is similar to the German maritime cargo lien system, reflecting the common legislative purpose. 

（2） The functional setting mode of maritime cargo lien system under the "civil commercial integration" legislation

This kind of legislation is represented by Switzerland and Taiwan, forming the so-called "real right lien" style, that is, starting from Switzerland, the two major functions of the possessory defense right and the priority of change of value of the lien are combined into one. Its basic characteristics are: when the creditor's right has reached the repayment period, according to its nature, the creditor's right is related to the subject matter of the lien, and the creditor has the consent of the debtor to possess the property - the property is not limited to the property owned by the debtor, as long as it is possessed in good faith and the creditor's right is related to the subject matter, this is the condition for the establishment of the right of retention; In addition to the right to retain the subject matter as a defense for simultaneous performance, its effect also includes the right to sell the retained property. However, the precondition for the realization of this right is that the debtor must be notified after a certain grace period, and the creditor can only sell the property if it is still not fully guaranteed.

China's civil lien system adopts this model, so Chinese scholars are used to finding arguments from Taiwan scholars' theories on civil lien when discussing the legal characteristics of maritime cargo lien, but they often ignore an important fact: although Taiwan implements "civil and commercial integration", the maritime cargo lien is adjusted by the special lien system, Although the general lien is applicable, the special lien is obviously different from the general lien in terms of its establishment conditions and realization methods. If we do not examine Taiwan's special lien system, then the study of Taiwan's maritime cargo lien is pointless. Even if we exclude the important difference that the system of lien on goods at sea in China originated from the Anglo American law and the civil lien in Taiwan originated from the mainland law, it is far fetched to define the characteristics of the lien on goods at sea in China with the general civil lien theory of Taiwan scholars.

Specifically, China's maritime cargo lien system includes two types of liens, namely, the carrier's lien and the lessor's lien, which are stipulated as follows in Taiwan:

(1) Liens of the carrier and the transport contractor

The carrier has a lien on the goods in proportion to the need to preserve its freight and other expenses; The carrier or the master may retain the goods from the owner of the goods whose contribution (general average) has not been paid off, except for the provision of security; The contracted carrier has a lien on the transported goods in proportion to the necessity of preserving the payment of his remuneration and advances. Compared with general lien, the particularity of carrier's lien lies in:

First, the subject matter of the carrier's lien is sufficient only if it is the carrier, not the debtor; This is not denied even by scholars who claim that the general lien is subject to ownership [24];

Second, although the lien is only limited to the goods transported, it is not necessary to have a connection with the creditor's rights; 

Third, the lien has a lien on the goods transported in proportion to the amount of the creditor's rights, which is an exception to the indivisibility; 

Fourth, if the goods are carried by several carriers in succession, the last carrier may exercise a lien on the carrier with respect to the freight and other expenses due to all the carriers. Such a lien may not only claim for its own rights, but also claim for the rights of others, which is different from the general lien that makes it claim for its own rights; 

Fifth, the contractor carrier's possession of the retained property is mostly indirect, while the general retained property is usually directly possessed. 

(2) Lien of real estate lessor

Paragraph 1 of Article 445 of the Taiwan Civil Code stipulates that "the lessor of real estate has a lien on the lessee's property placed in the real estate for the creditor's rights arising from the lease contract, except for the property prohibited from seizure". Different from general lien:

First, the secured creditor's right is sufficient only if it arises from the lease contract, and does not need to be implicated in the lien; 

Secondly, the retained property only needs to be placed on the real estate, and it is not necessary for the lessor to possess it; 

Third, if the lessee takes away the retained property which is known to the lessor and has not been objected to, the lien shall be extinguished. If the general lien holder loses possession otherwise than at his own will, he may, even if he does not object, request a reply in accordance with the protection provisions of possession, and the lien will not be reduced;

Fourth, the thing prohibited from seizure shall not be the subject matter of such lien; 

Fifth, if the lessor's lien can be recovered from the retained property, it is only limited to the damages that have been claimed and the rent that has not been paid in the current period and before, and the general lien does not have this limitation. 

The above two types of special liens in Taiwan are roughly the same in nature and characteristics as those of maritime cargo liens in China. However, the scope of the carrier's lien in Taiwan is limited to freight or other expenses, as well as the allocation of general average, which is roughly the same as the scope of the carrier's lien in countries that implement the "civil commercial separation", while the mainland's Maritime Law also stipulates the lien based on claims such as demurrage and loss of cabin freight, These items actually fall within the scope of contractual lien in English common law lien. This is detailed below.

3、 A Comparative Study of the Functions of Lien System and Its Implications for China's Lien System for Maritime Goods

Although China's Maritime Law is transplanted from the international conventions and international practices based on Anglo American law, and the system of lien on goods at sea originates from the common law Posessory lien, from the perspective of comparative law research, a comparison of the functions of the system of lien on goods at sea in the civil law system is helpful to the study of the system of lien on goods at sea in China, Solving the problems raised in the first part of this paper still has many meanings [25]:

（1） The Relative Independence and International Convergence of Lien on Goods at Sea

The system of lien on goods at sea occupies a relatively independent position in the domestic security system, and the similarities between the systems of lien on goods at sea in various countries are much more than those between the common lien systems in various countries. In addition to the generality of the above general liens, the maritime cargo lien systems of civil law countries show strong independence and internationality in at least the following two aspects:

First of all, from the perspective of the nature and function of the system, whether in civil law countries that implement the "separation of civil and commercial law" or "integration of civil and commercial law", there are obvious differences between the lien on goods at sea and the common lien systems in various countries, which reflects the significant commonality with the relevant systems of the Anglo American law (Lien), which forms the basis of international maritime practices. For example, the conditions for the establishment of the maritime cargo lien system are less stringent than those for the lien; The retention period, that is, the period from the exercise of the right to detain the goods to the exercise of the right to auction the goods, is shorter than the civil lien. The retention of the subject matter not only requires reasonable quantity, but also requires that the creditor must go through legal procedures to realize the value of the subject matter and not dispose of the lien by himself, etc., all of which reflect the "priority" of the maritime cargo lien system The characteristics and priority have a strong public policy nature, which is characterized by the large number of the subject matter of the lien on goods at sea and the high cost of keeping the lien, which needs to be handled in a timely manner. It reflects the function of commercial norms to give consideration to fairness and efficiency based on the characteristics of quick and prudent commercial acts. Compared with the lien, the priority system does not rely on the creditor's self relief, but directly gives some kinds of creditor's rights the opportunity to be paid first by the law, which has a stronger nature of public relief. For example, both Germany and Japan allow creditors to still have the right of auction and priority of compensation for goods that are out of direct possession; The lien on goods at sea in France belongs to priority at all, and priority is more real than "lien". [26] Understanding the compensation relationship between the priority system of the civil law system and the functional defects of the lien provides circumstantial evidence for understanding and explaining the origin of China's system of disposition of goods at sea. At least it can be said that even assuming that China's system of disposition of goods at sea originates from the civil law, So it is not in accordance with the rules of comparative law to explain and supplement the concept and system of lien on goods at sea in our country with the theory and system of common lien in the civil law system.

Secondly, from the perspective of legislative technology, the maritime cargo lien systems of the civil law countries all have the dual functions of simultaneously performing the right of defense and the right of priority to be repaid. Although different countries have adopted different setting techniques, they reflect the same emphasis on the functions of this level, and the understanding of the relationship between the two functions of the maritime cargo lien system, It is conducive to the realization of the purpose of the original contract as far as possible with the tendentious policy on the specific issues of determining the conditions for the establishment of the lien and the way of exercising it through judicial interpretation; In Germany, however, in its legislation, the concept of Anglo American law is not directly incorporated into the concept of its existing system, but the specific rights and obligations of all parties are clearly stipulated in specific articles of law. This legislative method avoids labeling the concept of the system, which is especially worthy of our reference in legal transplantation, especially in legal systems that are different from the original system.

The legislation of "civil and commercial integration" integrates the right of lien and the right of priority to be repaid from the system of "lien"; In the legislation of "separation of civil and commercial", the lien system actually consists of "lien" and priority. However, the functions of these two levels, namely, the validity of "lien" and the validity of priority, cannot be equated. The function of the first level is the most basic, universal and important function; The second level of functional effectiveness, though strong, is remedial and secondary. Many of the conditions and restrictions on the exercise of the right of priority in the legislation of various countries reflect this feature. For example, a certain grace period must be passed to promote the realization of the purpose of the contract as far as possible, that is, to make both parties realize their expectations for the performance of the contract as far as possible according to the intention at the time of signing the contract, It must be that the debtor has neither performed the contractual debt nor provided debt guarantee during the grace period, that is, the creditor has exhausted all means to ensure the realization of both parties' performance interests, and still has no possibility of realizing the creditor's rights; The creditor must fulfill the obligation of notice and custody during the retention period, which indicates that the law gives consideration to the debtor's rights and interests when giving the creditor the means to realize the priority claim, and measures to avoid abuse of rights and expand losses; The compulsory sale of the retained property is not only a reinforcement of the effectiveness of the lien, but also a restriction on the realization of the right. The retention period stipulated by the law of our country is longer than that of any other country in the civil law system, and does not give the carrier the right of priority even if it is separated from direct possession under certain conditions. As a result, on the one hand, the consignee who has no ability to pay cannot accept the goods and quickly dispose of the goods by using a specific commercial trading network to obtain the ability to pay off debts; On the other hand, the carrier who exercises the lien and the court who distrains the goods spend a lot of manpower and material resources to dispose of the goods. This is very unfavorable for protecting the interests of both parties and increases the social cost of rights realization. A thorny problem in practice is that the court seized the goods according to the party's application, but took great pains to deal with these goods. The author believes that Germany and Japan's maritime cargo lien system, which combines lien and priority, is worth learning from.

（2） On the Nature and Effect of Lien on Goods at Sea

The most controversial issue in practice is the nature of the carrier's lien as an example. The authoritative and popular view is that the civil law lien is a legal security interest. It believes that all creditor's rights stipulated in Article 87 of the Maritime Code of China are legal liens and can not be agreed by themselves, "Whether there is a lien depends on whether there are conditions for the lien stipulated by law. If the conditions are met, even if the contract does not stipulate, it can be retained. If the conditions are not met, even if the contract stipulates, it can not be retained." [27]

However, by comparing the scope of the carrier's lien stipulated by China and the above-mentioned civil law countries with the scope of [28], the author draws a different conclusion. Several creditor's rights of the carrier, which are protected in priority by legal lien in civil law, have common characteristics: they are only limited to those related to the subject matter of the contract or directly generated for the performance of the contract, mainly including freight (and ancillary costs, advances, berthing fees), general average sharing and salvage costs, which is consistent with the scope of the British general lien. Japan and Taiwan have not stipulated the lien for demurrage, while Germany has clearly defined the lien for demurrage, that is, it must be "demurrage generated according to the provisions of the contract or bill of lading". The German Commercial Code makes a clear distinction between liens of different natures, which more clearly reflects the function of lien in protecting creditor's rights of different natures: freight and other surcharges debts are contractual obligations that should be borne by the cargo party based on the interests of contract purposes, and labor remuneration is an indispensable item of creditor's rights in the priority systems of various countries; Prepaid customs taxes and other prepaid expenses are generated by the carrier, as the custodian of the goods, acting for the cargo party to perform certain obligations. It is not a contractual obligation, but an unpaid debt; General average contribution and salvage expenses are set based on public policy considerations. They are both protected by cargo lien and maritime lien in any country. Demurrage is a kind of damages, which is based on the damage to the interests of the carrier caused by the fault of the cargo party. [29] Although there is still a dispute in the maritime law circle as to whether the liability for demurrage belongs to tort liability, there is no difference as to whether it is a liability rather than a contractual obligation.

In contrast, the lien items listed in the Maritime Code of China actually include all claims that the carrier may have: freight or rent, general average contribution, demurrage, necessary expenses paid by the carrier for the goods, and other expenses that should be paid to the carrier (such as warehouse loss expenses), It not only includes all the legal lien items stipulated in the maritime law of the two major legal systems, but also includes the contractual lien items in the Anglo American law. Interpreting these liens as legal security interests will cause two problems:

On the one hand, the scope of protection of the legal lien system in China is too wide to reflect the legislative purpose of the legal transplant in formulating the lien norms. As mentioned above, the function of the maritime cargo lien system is to maintain the balance of the interests of the parties to the contract by giving priority to the protection of the specific creditor's rights of the carrier. On the contrary, if the creditor's rights without special protection characteristics are classified into the scope of legal lien protection, it may cause the effect of too favoring the carrier, resulting in the imbalance of this policy protection, which runs counter to the purpose of setting up the lien system. In other words, the lien is set up to protect the interests of the carrier, and the scope of the legal lien reflects a country's emphasis on which party protects the ship and cargo. For example, the contract form of a shipping country reflects the preference for the carrier, and its lien clauses tend to be broad in scope and have less restrictions on the conditions for the establishment of the lien. However, mainland countries prefer to protect the interests of cargo parties, and the scope of lien is narrow and more restricted. In China, the scope of lien stipulated in the Maritime Code is broader than that of legal lien in continental law countries and the United States and Britain. It almost covers all items of various lien clauses. If all items are interpreted as legal lien, is it sufficient to protect the interests of cargo parties? This kind of policy that excessively inclines the protection of the interests of the ship is contrary to the overall shipping policy that China, as a trade exporting country, focuses on protecting the interests of the cargo side.

On the other hand, denying the validity of the lien clause with the legality of the lien violates the international practice and cannot be passed in practice. The legality and contractual nature of lien refers to whether the basis of lien is directly stipulated by law or agreed by the parties themselves. In fact, the lien clause is a way for the shipper and the carrier to create a debt burden for the consignee in the contract. The creditor's rights or debts on which the lien can be established, the conditions for the establishment of the right, and the way to exercise the right often depend on the agreement of the transportation contract on the way of debt bearing, such as demurrage and demurrage losses at the loading port, if there is no special agreement, It is the responsibility of the shipper, and the lien is against the consignee, so the lien can be established only if it is clearly agreed in the bill of lading clause or the charter party clause incorporated into the bill of lading that this loss can generate a lien. If the contractual lien is recognized, the consignee can still choose the bill of lading clause to determine whether it has effect on the consignee by incorporating the clause; If they are all legal liens, they deprive the consignee of the opportunity of self-protection. Regardless of whether it is consistent with the international practice, it is not impossible for a country to adopt legislation that is completely different from the practice of other countries in order to protect the interests of its own parties. However, the Maritime Law is based on international practice, and experts involved in legislation have repeatedly stressed the internationality of the Maritime Law, with particular emphasis on respect for international practices, Considering the aforementioned shipping policy of China, such explanation obviously lacks reasonable basis. In fact, if we conduct in-depth and specific theoretical analysis of the normative function of the lien in the continental law system, it is easy to understand that the norms of the Maritime Code of China on the carrier's claims can be divided into "statutory" liens and "contractual" liens, even if we do not consider the background that China originated from the British and American law. [30]

（2） On the Establishment of Lien on Goods at Sea

It is worth noting here that there should be some differences between the two types of lien. In practice, there are mainly two issues in dispute:

1. Whether the creditor's right must be involved with the subject matter of the lien

This dispute can be easily solved by the first level function of lien, namely, the simultaneous performance of the right of defense. In the relationship of transportation contract, when the party who pays the subject matter of movable property as the way of debt performance fails to receive the payment from the other party, the subject matter of the contract is retained as a defense, which is a common basic feature of lien systems in civil law countries. The basic function of the carrier's lien is to force the debtor to pay off by lien on the debtor's movable property, so as to ensure the performance of the creditor's rights. If the creditor arbitrarily detains the debtor's movable property, but has no connection with the occurrence of the creditor's rights, the protection of the interests of one creditor is too thick, and the debtor is too cool, which is not only against the purpose of fairness, but also harmful to the safety of transactions. The implicated relationship includes one of the following three situations: the creditor's right and the obligation to return its subject matter are based on the same legal relationship; Creditor's right refers to the expenses paid for the subject matter; Or when the creditor's right arises from the damage to the subject matter. As far as the carrier's lien is concerned, several debts listed in the Maritime Code are related to the subject matter. Freight, surcharges and other fees have the same legal relationship with the return obligation of the subject matter, and they are reciprocal rights and obligations; The general average contribution and disbursement expenses are the expenses paid by the carrier for the goods (subject matter), while demurrage and "other expenses" not listed in the law include the loss of space expenses, etc., which belong to the damage caused by the subject matter. Any one of the above three items can be considered to be involved between the subject matter and the creditor's right, but the reasons for the involvement are different [31]

Whether the lessor's lien under a time charter party requires a connection between the lien and the creditor's right depends on the nature of the contract. In the academic circles, there has always been a "transportation contract theory" and a "property lease theory" for time charter parties, and some people believe that time charter parties are between transportation contracts and property lease contracts. From the perspective of the legislative style of China's Maritime Code, the bareboat charter contract, which is typical of property leasing, is included in the chapter of "ship charter contract", which means that the property leasing theory is adopted, that is, the time charter contract has the characteristics of real estate leasing. The shipowner uses the movable property placed on the immovable property as the guarantee for the charterer to perform the rent debt. In the system of "possessory lien" in Anglo American law, it belongs to general lien or generalized lien, which is similar to the pledge in China. The pledge right is not set to guarantee the specific creditor's rights, so the movable property as the subject matter of the lien is not required to be the subject matter of the contract.

2. Whether the subject matter of the lien must be the debtor's property

Whether the subject matter of the lien must be the property of the debt is also a controversial issue in the civil lien system. However, it is easy to solve the problem by applying the theory of priority in the maritime lien system. In the lien system of Germany and Japan, the second level function of the carrier's lien is assumed by priority, which is similar to the common law carrier's lien. The subject matter of the lien is in the nature of priority in rem, and it does not require that the subject matter belongs to the debtor, as long as the creditor's right arises from it, Then the creditor can seize the subject matter (by itself or by the court) and obtain payment through judicial procedures. The retained property shall be the subject matter of transportation actually controlled by the carrier, not limited to the goods owned by the consignee. Because from the perspective of the function of the lien system to maintain the equality of rights and obligations of both parties, it is neither realistic nor fair for the carrier to identify the owner of the goods. The law only requires the carrier to deliver the goods against the bill of lading after receiving the debt that should be borne by the consignee, rather than requiring the goods to be delivered to the owner of the goods. [32] The consignee is often uncertain, and the transaction conditions of international trade contracts are so complex that the ownership of goods often depends on the agreement of international sales contracts. The carrier has no obligation to check whether the holder is the owner of the goods.

However, the elements of the lessor's lien are different. Article 87 and 141 of the Maritime Code of China adopt different wording: Article 87 stipulates that "... the carrier may retain its goods within a reasonable limit"; Article 141 stipulates that "... the shipowner's goods and property belonging to the charterer and the income from the sub charter of the ship shall have a lien". The shipowner shall not retain any cargo or property belonging to others on board. Although considering the special way of transplanting the Maritime Code into the convention according to the chapter as mentioned earlier in this article, the obvious difference in language expression cannot be just a matter of legislative technology. The content of the Maritime Code is the same as that of the famous Baltimore format, but it is obviously different from the wording in the NYPE international contract format [33], which focuses on protecting the carrier, NYPE format stipulates that goods on "all" ships can be retained. Compared with the United States, a large maritime power, China focuses on the protection of the interests of the cargo side, so the deliberate addition of such restrictions is based on shipping policy considerations. Because in the time charter relationship, the ship and its cargo are under the actual control of the lessor, and in most cases the charterer has sublet the ship, and the cargo on the ship is not the property of the first charterer himself, if the subject matter of the lien is not restricted, it will damage the interests of a third party that has nothing to do with the creditor's rights and debts of the ship charter contract, Not only does it lose the original intention of maintaining fairness, but it may also cause chaos in the transaction order. Therefore, the subject matter of the lien must be the property of the lessee. In practice, the property belonging to the lessee that the lessor can retain is often only fuel on the ship.

（4） On the Exercise and Realization of Lien on Goods at Sea

Possession of the subject matter is the condition for the establishment of the lien, as well as the basic condition in the whole process of exercising the lien. "Loss of possession means loss of the lien" seems to be the general theory. The most controversial issue in practice is the relationship between lien and pre litigation withholding, which depends on the understanding of "possession" or "lien".

However, possession can be divided into direct possession and indirect possession; Possession in kind and in imitation; In the maritime cargo lien, it is mainly divided into ship possession and shore possession. Onshore possession also means unloading the goods to the warehouse. The warehouse is a third person in most cases. The carrier actually hands over the goods to its agent for safekeeping, not to the consignee. This is an economic and safe way of lien, which is advocated by civil law countries such as Germany and Japan. During this period, it is even allowed to deliver the goods under certain conditions without losing the lien. Under certain conditions, the realization of priority is not based on possession or direct possession of the subject matter. The priority system plays an important or even major role in the maritime cargo lien system, reflecting the public policy nature of the protection of the carrier's creditor's rights, So that its maritime cargo lien system embodies obvious priority characteristics. In addition to the creditor's self retention, the other is to transfer the possession to the maritime judge, that is, when the goods are detained on the ship, the creditor applies to the maritime court for detaining the goods. The court's method of handling the seizure is generally to unload the goods to the shore and deliver them to the warehouse for safekeeping. But this is no longer a self imposed lien, but a lien transformed into a judicial lien. In Anglo American law, this transfer of lien to a maritime judge is the main way to exercise the lien. The maritime court must try the lien clause, which is the basis of the application. That is, under the condition that there is no doubt about the validity of the lien clause, the maritime court should detain the goods still in the direct or indirect possession of the lienee, The exercise of the lien is transferred to the maritime judge.

As for the way to realize the priority claim on the lien, Germany and Japan both stipulate that the lien holder shall not dispose of the lien without legal procedures, which is different from the way to realize the civil lien in China. In Anglo American law, the possessory priority (Possessory Lien) is only a right of defense, not the right to sell the lien; What the seizure of goods achieves is priority, which is obtained by possession of the subject matter and realized by judicial seizure of the auction subject matter. Therefore, in terms of the way to exercise the lien, the effect of the creditor's exercise of the lien is consistent with the judicial seizure of goods. The creditor's lien on goods is the basis for his application for judicial seizure of goods and the court's decision on judicial seizure of goods - but the scope of application of the lien is not completely consistent with the scope of application of the maritime judicial seizure of goods, and the latter is more extensive than the former

Large; As far as the way to realize the lien is concerned, selling or auctioning the goods in the possession of the lien holder or in the custody of the court through judicial procedures is the only legal way for the creditor to obtain the priority of repayment.

epilogue

When we study the system of lien on goods at sea in a real comparative method, that is, when we conduct a functional comparative study on the legal relations adjusted by the same system or different systems, our vision will go beyond the legal norms under the label of "lien" in the countries of the civil law system, As for the priority system, which plays an important role in the system of lien on goods at sea, we found how similar the civil law system is to the British and American lien (priority) system in setting up the system of protecting the creditor's rights of the carrier and the lessor, and how different it is from its own retention system. In fact, the international unity of maritime legal system and its relative independence in the domestic legal system are not new conclusions. However, when investigating specific institutional norms, due to the interference of legal concepts in research methods, it is impossible to obtain comprehensive information that is hidden behind the concepts and reflects the functions of the system. Such "comparative research" It is also "reasonable" to draw wrong conclusions. Of course, the enlightenment from the comparative study of the functions of the lien system in the civil law system is far from excluding the general interpretation of the definition of the lien system for goods at sea in China based on the civil lien theory originating from the civil law system, the functional principles of the lien systems in the civil law countries The functional advantages of the priority system in the priority protection of specific maritime claims, especially the carrier's claims, and the legislative techniques of countries in continental law that coordinate the maritime cargo lien system with common functions by different concepts and legal structures are similar to those of their own common lien systems, which provide a model for explaining and improving our maritime cargo lien system.

Notes

[①] See (Germany) K. Zweigt, H. Katz: "The Method of Comparative Law", General Theory of Comparative Law, translated by Pan Handian, etc., Guizhou People's Publishing House, 1992 edition, pp. 53-84 for the theory of comparative method in the article.

[②] Liens on goods at sea in various countries include the carrier's lien under the contract of carriage of goods by sea and the lessor's lien under the time charter party.

[③] Lien, also translated as "lien", mainly includes Maritime lien ("maritime lien", "maritime lien", "maritime priority", "maritime priority claim", "maritime priority claim", etc.), Possessory lien ("possessory lien", also translated as "possessory priority") and Equitable lien ("equitable priority").

[④] According to the interpretation of the characteristics of civil lien in China, "lien" itself is a kind of right that arises and exists on the premise of "possession". Therefore, in order to avoid duplication of synonyms, the translator removed the word "possession" and became the "lien" in China's Maritime Law. Since then, because some people still use the traditional translation of Lien - "Lien", it has formed the misunderstanding of "Lien=Lien". In fact, the system with similar functions to China's civil lien is only a branch of the Lien branch Posessory lien, namely, the Partial lien ("special lien"). (See Si Yuzhuo: New Maritime Law, People's Communications Press, 1991 edition, page 100.) Civil law scholars cite the view of British scholar Treital - "lien can fill the gap left by the limited scope of application of performance defense in China" - to explain the difference in the scope of application of lien and simultaneous performance defense in China, To some extent, it reflects that the civil law scholars in China, who mainly study civil law, are unfamiliar with the system of lien and priority in Anglo American law. In fact, the "lien" referred to by Treital is Lien in English law, and the function of this security system is much more than that of the lien system in China. The Black's Law Dictionary lists nine connotations of Lien, and its scope of application is far broader than that of simultaneous performance of the right of defense; On the contrary, the application scope of the right of defense of simultaneous performance is wider than that of lien.

[⑤] See Liang Huixing, Chen Huabin: Property Law, Law Press, 1997 edition, page 22, 376.

[⑥] See Liu Zhiwen: On the Nature and Influence of Lien on Goods in the Carriage of Goods by Sea in China, published in China Maritime Law Yearbook, 1995, page 161. See also Fu Xumei: Interpretation of China's Maritime Law, People's Court Press, 1994 edition, page 170; Jin Zhengjia, Weng Ziming: Monograph on Maritime Preservation, Dalian Maritime University Press, page 178. Both of them use the civil lien theory of our country to explain the characteristics of the maritime cargo lien system.

[⑦] See Liang Huixing, Chen Huabin: Property Law, front citation, page 22.

[⑧] Fan Jian: German Commercial Law, China Encyclopedia Press, 1993 edition, page 228.

[⑨] See Sun Xianzhong: Contemporary German Property Law, Law Press, 1997 edition, page 337.

[⑩] There are mainly two schools of theories on the translation methods of legal terms: scholars engaged in civil and commercial law studies of continental law believe that "the conceptual terms of Anglo American law should be incorporated into China's existing legal system to make them consistent with the existing legal conceptual terms." They advocate that the systems represented by the concept of starting system with the same or similar functions should be expressed in the corresponding concepts of the purpose system, The author calls it "the system function translation method" or "the function translation method" (see (Taiwan) Wang Zejian: The Buyer's Expectation Right in Conditional Sale, Volume I of Civil Law Theory and Case Study, China University of Political Science and Law Press, 1997 edition, page 130); Scholars engaged in the study of British and American law believe that "it is easy to bring the meaning of terms in one system into another system by equating terms in one legal system with terms in another legal system by one or two identical places", The author advocates that "only when the difference between the two concepts is not significant in any case can an equal sign be drawn, otherwise it is better to create words." The author calls it "literal translation of concept connotation" or "literal translation". (See (Hong Kong) He Meihuan: Hong Kong Contract Law (Volume I), Peking University Press, 1995 edition, page 3). However, the Maritime Code is formulated by transplanting the whole chapter of international conventions, and the formed concept of China's maritime law is unique - the concept in the convention or standard contract is translated according to its specific meaning in this chapter, and the concept meaning of each chapter of the Maritime Code is explained in this chapter. The same Chinese legal term does not require its meaning to be consistent in the whole law, However, it is not required that multiple meanings of the same English legal term should be consistent between chapters, or even translated into different Chinese like Lien. (See Guo Riqi: Brief Introduction to the Characteristics of the Establishment of the Maritime Law of China, published in the Compulsory Reading of the Maritime Law, Communications People's Publishing House, 1993 edition, page 23. The author is a consultant to the Legislative Affairs Bureau of the State Council during the formulation and promulgation of the Maritime Law.)

[11] According to the interpretation of maritime law experts, Maritime lien is translated as "maritime lien" according to the traditional translation method, which most experts now think is inappropriate, and the translation of "priority" is translated literally (see Zhu Zengjie: Chapter II of the Maritime Law, which is contained in the Compulsory Reading of Maritime Law, page 54).

[12] It is translated as "possessory priority" or "possessory lien".

[13] The author advocates that the translation of legal concepts should follow the literal translation method; The translated concept according to the function of the local system should be explained in the legislation by defining the connotation of the concept. The comparative study of institutions should adopt the "functional comparison method". The author discusses this in detail in the first part of his master's thesis (revised as "Translation of Legal Terms and Interpretation of Legal Concepts").

[14] (Germany) K. Zweigt, H. Kotz, op. cit., p. 80.

[15] (Germany) K. Zweigt, H. Kotz, op. cit., p. 75.

[16] For the discussion of this function, see Wang Liming: Theory and Practice of Civil and Commercial Law, Jilin People's Publishing House, page 278.

[17] (Germany) K. Zweigt, H. Kotz, op. cit., p. 77.

[18] Japan's lien has a weak property right and does not have the effect of giving priority to repayment of a typical "real right lien". According to the classification criteria in this article, Japan is closer to the German system that implements the so-called "creditor's right lien" in terms of function settings. Therefore, this article actually includes Japan when referring to the legislation of "creditor's rights" lien.

[19] Chapter VIII of French Civil Code, translated by Li Haopei, etc., Commercial Press, 1996 edition.

[20] The content of "Maritime Law" in the French Commercial Code has been abolished and replaced by various legal documents that have not been compiled, except the provisions on prescription in Article 433. See Notes to the French Commercial Code translated by Jin Haogui, International Culture Publishing Company, 1985.

[21] See Jiang Ping: Outline of Civil and Commercial Law in Western Countries, Law Press, 1984 edition, page 62.

[22] Quoted from Reference Materials of Maritime Law, compiled by the Department of Policies and Regulations of the Ministry of Communications, July 1991, page 94. In this translation, both articles 614 and 623 are translated as "lien". The author believes that this should be "legal pledge", based on the legal pledge law articles in the commercial law (including the pledge of the carrier of the transport contract) listed in the notes to the "legal pledge" specification (article 1257) in the full translation of the German Civil Code by Xie Huai, and the legal articles cited in the German Commercial Law by Fan Jian, As well as Sun Xianzhong's translation in the German Contemporary Property Law, it links the characteristics of pledge and lien in German commercial law, and analyzes the logical structure of concepts in the same law. However, no matter how the concept is translated, the content of this provision shows that Germany's maritime lien system has the function of priority.

[23] Hou Jun, Lv Jian: Contemporary International Maritime Law, People's Communications Press, 1992 edition, page 215-216

[24] (Taiwan) Xie Zaiquan, On Real Rights in Civil Law (Volume II), page 426. See also Articles 445, 647, 938, 960, 962 of the Taiwan Civil Code and Article 162 of the Maritime Code.

[25] The author advocates that the concept of the Maritime Code should be restored to the institutional matrix on which it depends, instead of being applicable to China's ordinary civil and commercial law system and theoretical interpretation. The reason is not only that the maritime law systems of various countries are relatively independent and internally closed systems, but also that the unique legislative technology of China's Maritime Code is transplanted from the whole chapter of the Convention, Emphasize the logical strictness and functional integrity of each specific system, and even prefer to sacrifice the coordination and consistency between the chapters of the whole law when it is necessary, and certainly less consider the coordination between the Maritime Code and other civil and commercial laws in China. For the introduction of this legislative background, see Guo Riqi: Introduction to the Legislative Features of China's Maritime Law, which is contained in the Compulsory Reading of Maritime Law, Communications People's Publishing House, 1993 edition, page 23. The author was an adviser to the Legislative Affairs Bureau of the State Council during the formulation and promulgation of the Maritime Code.

[26] The strongest protection function is that the maritime lien can be transferred with the ship, and the order of payment of the creditor's rights is directly in accordance with the law, and secretly attached to the ship, which has unparalleled priority.

[27] See Fu Xumei, Interpretation of Maritime Law of China, People's Court Press, 1994 edition, page 170; Jin Zhengjia, Weng Ziming: Monograph on Maritime Preservation, Dalian Maritime University Press, page 178. In fact, the system of lien on goods at sea in China originates from the system of possessory lien in English law, so the author advocates that the explanation of British lien theory should be fully applied. The comparison between the continental law system and the Anglo American law system of lien on goods at sea at least negates the rationality of explaining the system of lien on goods at sea in China with the civil lien theory of the continental law.

[28] The possessory lien in English law is divided into common law lien and contractual lien. The common law lien only includes freight, general average contribution and expenses paid on behalf of goods. The contractual lien also includes liens arising from demurrage, loss of warehouse expenses, etc. Moreover, when interpreting the terms of the bill of lading, the effect of the contractual lien takes precedence over the common law lien, that is, the legal lien can only be applied if there is no agreement in the contract. (See Dong Ansheng, British Commercial Law, Law Press, 1991 edition, pp. 443-449; Si Yuzhuo, Priority Claim, Limitation of Time and Limitation of Collision Liability, Dalian Maritime College (internal issue), p. 55; Si Yuzhuo: New Maritime Law, People's Communications Press, 1991 edition, page 100. (Hong Kong) Chen Chengyuan: Carrier's Lien, published in International Maritime Law Practice, Guo Guoting, Dalian Maritime University Press, 1996 edition, page 331.)

[29] As for the nature of the lessor's lien under a time charter party, there should be no dispute between the validity of "statutory" and "contractual". Article 127 of the Maritime Code stipulates: "The provisions of this chapter on the rights and obligations between the shipowner and the charterer shall apply only when there is no agreement or no different agreement in the charter party." That is to say, the provisions of the law on the charter party are non mandatory or optional norms, and the contract terms shall prevail over the legal provisions. Accordingly, time charter party lessor's lien is a contractual lien, and its effect in the interpretation of the contract has priority over that of the Maritime Code on the lessor's lien. However, the nature and effect of legal norms have also been ignored in the study of maritime cargo lien system, so the author needs to make a special note here.

[30] The establishment of a specific lien in the priority of possession (lien) in Anglo American law requires that, in addition to legal possession of the subject matter, the creditor has paid expenses or provided services for processing the subject matter or engaging in work related to the subject matter, and has improved the status of the subject matter in accordance with the debtor's contractual intent.

[31] For the property right of the bill of lading, see Guo Yu's On the Nature of the Property Right of the Bill of Lading, published in China Law Journal, 1997, Issue 4; Wang Yanjun, Theoretical Discussion on the Real Right of Bill of Lading, published in Maritime Justice, 1997, Issue 2; Zhu Moquan's Bill of Lading and Delivery of Goods, published in Maritime Trial, 1894, Issue 1.

[32] The NYPE format is formulated by the U.S. government and is considered to be a contract favoring the carrier. See Yang Liangyi, Time Charter Contract, Dalian Maritime University Press, 1997 edition, page 8.