在建船舶抵押融资法律问题研究

发布时间：2018-03-12 19:19

本文选题：在建船舶抵押　切入点：抵押人　出处：《上海海事大学》2005年硕士论文　论文类型：学位论文

【摘要】：船舶建造是一项耗资巨大的工程,船厂或航运公司在建造船舶过程中可能会遇到资金上的困难,需要借助正在建造中的船舶进行资金的融通。于是在建船舶抵押贷款就应运而生了,并且在世界各国有蓬勃发展的势头。而事实也表明,利用在建船舶抵押贷款不失为解决造船资金难题的理想方法。由于标的物本身的特殊性,建造中船舶抵押权与一般船舶抵押权有很大的不同。其设立、公示的方式都有自己的特殊的地方,其效力,实现更加复杂。而在建船舶抵押权人遭遇的风险也更加多样化,对风险的防范措施也更具特色。然而,这样一种新型、有效的造船融资方式在我国至今没有得到广泛应用,究其原因在于:其一,我国在这方面的法律规定十分欠缺,许多问题没有得到澄清,而海商法和金融法理论界对此的研究和探讨也相当匮乏。这在一定程度上导致了投融资双方当事人因害怕权利得不到法律的保护而排斥这种融资方式。其二,银行等金融机构本身对造船项目的特点、风险认识不够,就对在建船舶抵押贷款持比较谨慎的态度。这两个因素阻碍了在建船抵押融资的推广。而船舶建造是海运的基础,我国要发展航运事业,就必须先解决好造船资金问题。有鉴于此,笔者认为有必要澄清在建船舶抵押权某些方面的问题,让投融资双方对其有一个正确科学的认识。本文分成六个章节就几个重要的问题进行一定的探讨和研究。第一章在分析比较了新建船的各种融资方式的基础上,提出建造中船舶抵押贷款是解决国内目前造船资金难问题的现实而有效的途径。并对这种融资方式的可行性作了简要的分析。第二章对在建船抵押权的设立进行了讨论,先后从抵押权设定人的资格、设立的时间以及抵押权登记三个方面作了分析。并指出建造中船舶设立抵押权已突破了我国传统的抵押权制度。建造中的船舶尽管不具有独立的使用价值,但已具有交换价值,可以转让也可以抵押。第三章围绕在建船舶抵押权效力问题,选取了抵押标的物的范围、抵押权对抵押人和抵押权人各自的效力几个方面展开讨论。并且对《担保法》第35条提出了修改建议。第四章探讨了保障在建船舶抵押权的两类保险——船舶保险和抵押权人利益保险。指出,它们兼有工程建设险和海上保险的性质,继而确定发生保险纠纷时应当适用的法律和有权管辖的法院。第五章着眼于在建船舶抵押权的实现。笔者认为,传统的四种抵押权实现
[Abstract]:Shipbuilding is a costly project, and shipyards or shipping companies may encounter financial difficulties in building ships. Need to use the ship under construction for financing. So the mortgage came into being, and there is a momentum in the world. And it turns out, The use of mortgage loans for ships under construction is an ideal way to solve the problem of shipbuilding financing. Due to the particularity of the subject matter itself, the mortgage right of the ship under construction is quite different from that of the ordinary ship mortgage. The way in which the subject matter is set up and published has its own special place and its effectiveness. The risks encountered by mortgagees of ships under construction are more diversified, and the precautions against them are more characteristic. However, such a new and effective way of shipbuilding financing has not been widely used in China. The reasons are as follows: first, the legal provisions in this respect are very lacking in our country, and many problems have not been clarified. However, the theoretical circle of maritime law and financial law also lacks of research and discussion on this issue. To a certain extent, the parties involved in investment and financing exclude this kind of financing method because they fear that their rights will not be protected by law. Second, Banks and other financial institutions themselves have a more cautious attitude towards mortgage loans for ships under construction because they do not know enough about the characteristics and risks of shipbuilding projects. These two factors hinder the promotion of mortgage financing for ships under construction, and shipbuilding is the basis for shipping. In order to develop shipping industry, we must solve the problem of shipbuilding financing. In view of this, the author thinks that it is necessary to clarify some aspects of mortgage of ships under construction so that both sides of investment and financing can have a correct and scientific understanding of it. In the first chapter, on the basis of analyzing and comparing the various financing methods of the new ship, It is put forward that mortgage loan of ship under construction is a practical and effective way to solve the difficult problem of domestic shipbuilding capital at present, and the feasibility of this kind of financing method is analyzed briefly. The second chapter discusses the establishment of the mortgage right of the ship under construction, from the perspective of the qualifications of the mortgage creators, The time of establishment and the registration of mortgage are analyzed. It is pointed out that the establishment of mortgage on ships under construction has broken through the traditional mortgage system in China. The ships under construction have exchange value although they do not have independent use value. It can be transferred or mortgaged. The third chapter focuses on the validity of mortgage on the construction of ships, selects the scope of the subject matter of mortgage, discusses the respective effectiveness of mortgage on mortgagor and mortgagee, and puts forward some suggestions to amend Article 35 of the Law of Guaranty. In Chapter 4th, two types of insurance, ship insurance and mortgagee's interest insurance, are discussed to protect the mortgage right of ships under construction. It is pointed out that they have the properties of both engineering construction insurance and marine insurance. Then determine the law to be applied and the court with jurisdiction in the event of an insurance dispute. Chapter 5th focuses on the realization of mortgage of ships under construction.
【学位授予单位】：上海海事大学
【学位级别】：硕士
【学位授予年份】：2005
【分类号】：D923

【引证文献】