The meaning of "after entry into the last port" under Article 861 (1) 1 of the Commercial Act concerning maritime lien.

Article 861(1)1 of the Commercial Act provides a maritime lien on the cost of preserving a ship after the final entry into a port is due to the fact that there is no such claim that other creditors would be unable to obtain payment from the proceeds of the auction of the ship. Therefore, the meaning of "after the final entry into a port is similar to the cost of auction." Therefore, not only a port where the voyage was completed for the last purpose, but also a ship where the voyage was suspended due to auction or transfer disposition during the voyage and auction is not required to be different. Thus, it is reasonable to interpret that the ship includes a port where the ship exists at the time when the voyage was closed.

Article 861 (1) 1 of the Commercial Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Han-sung, Attorneys Park Jae-young and 1 other, Counsel for plaintiff-appellant)

Busan City Fisheries Cooperatives (Attorney Lee Im-soo, Counsel for defendant-appellee)

Defendant 1 and two others

Busan District Court Decision 95Na5261 delivered on November 24, 1995

All appeals are dismissed. The costs of appeal are assessed against the Defendants.

We examine the grounds of appeal.

Upon citing the judgment of the court of first instance, the court below acknowledged that the plaintiff extended money to the non-party 1, and is a mortgagee of the above ship, and the defendants were the creditor of the cost of repair of the ship. After the voluntary auction procedure commenced upon the plaintiff's request, the defendants applied for an auction on the date of distribution on the ground that the above claims were priority claims for the ship, and distributed to the defendants the remainder other than the part of the plaintiff's objection to the above claims. The above claims of the defendants were shipped out for operation after repair, and entered the port of around one month after the defendants got out for operation. The court below acknowledged that the above claims of the defendants were the claims with maritime lien. Since the above claims of the defendants were the claims of the defendants that the above ships were going back to the port of Busan after repair of the ship, the defendants' claims for repair of the ship do not constitute "expenses for preservation and inspection of the ship and its equipment after entry into the last port of Article 861 (1) 1 of the Commercial Act."

Article 861(1)1 of the Commercial Act provides a maritime lien on the cost of maintaining a ship after the final entry into a port is due to the fact that there is no such claim that other creditors would be unable to obtain payment from the auction proceeds of the ship. Therefore, the meaning of "after the final entry into a port has been completed, and as well as the cost of maintaining a ship where a ship is held at auction due to an auction or a transfer during a voyage. Thus, it is reasonable to interpret that the ship includes a port in which the ship exists at the time when the voyage is closed. However, as determined by the court below, if the defendants' ship repair claims are the ship repair claims before the departure from a port for the last operation of the ship, such claims cannot be deemed as the cost of preserving the ship after the final entry into a ship having a maritime lien under the Commercial Act, and the period of navigation as a family fishing vessel shall not be deemed as a short-term. Therefore, the judgment of the court below which points out the issue of this case cannot be asserted as a matter of lawsuit, and there is no error of law as otherwise.

Therefore, all appeals by the Defendants are dismissed, and all costs of appeal are assessed against the Defendants who have lost. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Don-hee (Presiding Justice)