Whether or not a ship creditor having a maritime lien as prescribed in the Commercial Act, may demand the transferee of the ship to pay his debts, or not.

A ship creditor who has a maritime lien under Article 861 of the Commercial Code cannot claim performance of the obligation to the transferee of the ship, but the ship is only the object of the maritime lien according to the abstractness of the maritime lien.

Article 861 of the Commercial Act

[Defendant-Appellee] Plaintiff 1

Korea Trust Bank Co., Ltd.

Seoul High Court Decision 73Na1236 delivered on December 20, 1973

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

The grounds of appeal by the plaintiff's agent are examined.

The maritime lien under Article 861 of the Commercial Act is a special right recognized by the Commercial Act, which refers to a specific creditor with respect to a ship, the right to be paid in preference to other debtor's claims with respect to the property recognized as a preferential right to the ship, and is a special right recognized by the Commercial Act. The creditor who enjoy such maritime lien is a ship creditor, i.e., the creditor., the creditor who enjoy such maritime lien. According to the intention to apply mutatis mutandis the provisions on mortgage under the Civil Act, even if the auction right to the property is recognized. According to the facts acknowledged by the court below, the plaintiff is a shipowner of the above ship against the non-party interest company, the owner of the above ship, and the defendant bank holds the ownership by auction at the original date. Thus, the defendant is the person who takes over the ship which is the object of the above preferential right to the ship, and it is not a debtor of the above preferential right, so it cannot be said that the defendant's ship becomes the object of the maritime lien and it cannot be said that the mortgage obligation cannot be claimed against the surety.

In addition, the paper 1 is not a way to be employed as a charge for the exercise of discretionary power over fact-finding and judgment of evidence preparation by the court below.

The essay is groundless.

Therefore, this decision is delivered with the assent of all participating Justices.

Justices Ahn Byung-soo (Presiding Justice)