선박우선특권의 실행방식 변경 및 피담보채무자의 범위 제한에 관한 고찰 - 정기용선자를 중심으로 -

Under the Korean law practice, a maritime lien on a vessel shall be executed by means of public auction to the vessel concerned to the maritime lien and this rule shall apply for all vessels arrested in Korea regardless of the vessel’s flag. Pursuant to Precedents reported, creditors by maritime lien may go to a public auction to the concerned vessel without obtaining a written judgment from a competent court. On the other hand, under the situation of no statutory article in the commercial code, is it generally accepted that a series of claims against a time charterer shall be secured by maritime lien by analogy with Article 850 of the commercial code. However, it is illogical and unjust that in some jurisdictions such as Panama, USA and England, Maritime lien is a right to establish jurisdiction at the port where a vessel calls so that it is closer to a procedural right and that under the Korean property act, any right that is neither prepared in the statute nor acknowledged as a customary law by the court is not a real right. Under the true construction of the Korean law, it is groundless that a certain article in the Bareboat Charter chapter can apply analogous to a maritime issue concerned with Time charter, since it may result in breaching and infringing the said Numerus Clausus principle, the basic and fundamental rule of real rights. Furthermore, Korean Law does not realize a certain way to make Maritime lien public albeit maritime lien shall prevail over a pledge right and a mortgage. For this reason, if the scope of maritime lien holder is broadly extended or admitted without being supported by a statute, it may give rise to harm the rights of other creditors and other mortgagees. Accordingly, articles of Maritime lien are to be strictly construed and limitedly applied to a particular matter. The purpose of this article is to make it clear why the construction and application of articles of maritime lien are done limitedly and strictly focusing on some legal issues arising out of Time charter and further to make a suggestion of a new practice for execution of Maritime lien. For that purpose, this article will firstly reconsider the principle of Numerus Clausus and the law of claim to request auction of a designated vessel so as to execute a certain credit secured by maritime lien. And then, this will point out that there is necessity in changing the current law practice of ship arrest for maritime lien into two ways, that is to say, Claim to request auction to the vessel concerned to maritime lien is for vessels having Korean flag and Ship arrest for provisional attachment is for foreign vessels. Further, this article will demonstrate logically that as a matter of true construction of the Korean law, Maritime lien may not be conferred on any claim arising out of a time charter by analogy with certain article of Bareboat charter.