人身专属性视域下的船舶优先权的转让与代位

On the transfer and subrogation of maritime liens from the view of personal specificity

根据民法、合同法中债的转移与代位的理论,分析了航运实务中第三人垫付行为的性质——根据不同情况或属于债权转让,或属于债务承担,或属于债的概括承受,或属于代为清偿。只有第三人垫付行为构成债权转让或代位时才可以取得船舶优先权的担保。基于人身专属性理论,认为《中华人民共和国海商法》第22条规定的船员工资之海事请求原则上不可转让,但在等额有偿转让时应有例外,而且此项请求可以代位;人身伤亡赔偿请求不可转让,仅可代位。在海事请求转让或代位的同时,第三人应取得相应的船舶优先权。

Based on the theory of transferring of debts and subrogation in civil law and contract law, this paper analyzes the nature of the advance acted by a third party in the shipping practice, which could belong to assignment of credit, assumption of debt, general assumption of debt or substitute payment in line with different conditions. The third party could get the secu- rity of maritime lien only if the advance acted by the third party constitutes the assignment or subrogation of credit. Based on the theory of personal specificity, the maritime claim for wages of the crew as provided in Article 22 of the Maritime Code of the People＇ s Republic of China, in principle, cannot be assigned. However, there exists an exception that it could be subro- gated when the wages is transferred in an equivalent and compensable way. Besides, claims in respect of loss of life or per- sonal injury can be subrogated but not assigned. The third party should acquire the appropriate maritime lien while the mari- time claim is assigned or subrogated.