船舶物权变动研究
发布时间：2018-07-25 17:25
【摘要】：为实现民法传统理论与海商法研究的良好结合,本文选定船舶物权变动为研究课题:比较不同立法模式之考量、剖析现行法律之规定、明辨立法意旨之深意,进而于分析之上为相应立法建言。 本文以因法律行为发生的物权变动为切入点,研究重点在于船舶所有权变动登记、船舶抵押权变动登记以及光船租赁登记的模式选择及制度建构,并对具有特殊性的“船舶”——“建造中船舶”的上述物权变动登记问题作了针对性的分析。 在研究方法上,本文系采归纳与演绎并进、理论与案例同行之路径。 第一章为“研究范围之设定”,作者在本章中将“物权”的含义限定为“直接支配特定物的权利”,并认为由此衍生而出的“对世性”及“排他性”是考虑船舶物权变动模式选择时的基础所在;通过对“特定物”含义的分析,作者得出了“建造中船舶”无须“拟制”便可成为“特定物”的结论;作者认为对物权变动的考察应就物权自体为之,以避免概念上的混淆;在明确我国现行法律中“船舶物权”含义的基础上,作者将本文的研究范围限定为船舶意定物权变动的研究。 第二章为“确立船舶物权变动原则之必要”,作者通过对法律基本原则作用的阐明,明晰了确立船舶物权变动原则的必要性。 第三章为“‘船舶’之特性与‘物权变动’之共性”,作者在对前述“特性”与“共性”归纳提炼的基础上,明确了从船舶“准不动产”属性出发、通过“交易便捷”与“交易安全”的价值考量对船舶物权变动模式进行选择的基本思路。 第四章“船舶物权变动原则之确立”为本文的核心内容。在“公示原则”题下,作者对船舶物权变动登记领域国内外的相关制度进行了归纳与总结,在比较“登记对抗主义”与“登记要件主义”两者利弊的基础上,倾向于以“登记要件主义”为核心的制度建构;在“公信原则”题下,作者着重论述了赋予登记公信力的重要意义,对未来我国船舶物权____变动登记领域“公信力”制度的建构之可能性与具体路由提出了自己的观点:除原始登记外,无须“实质性审查”亦可达到赋予相关船舶物权变动以公信力的目的,因此未来改革的重点应是相应国家赔偿制度的建立和登记簿信息的进一步公开透明;在“区分原则”题下,作者认为接受“区分原则”乃至“物权行为”理论是对现实生活的合理抽象化,在采纳“登记要件主义”为制度建构核心的前提下,必须接受“区分原则”方可实现理论上的自洽性以及对实践的指导价值。
[Abstract]:In order to achieve a good combination of the traditional theory of civil law and the study of maritime law, this paper selects the change of the ship's real right as a research topic: To compare the consideration of different legislative patterns, to analyze the provisions of the current law, to discern the profound meaning of the intention of the legislation, and on the analysis for the corresponding legislative suggestions.
This paper focuses on the change of property rights due to legal action, the focus of the study is on the registration of changes in ownership of ships, the registration of the change of ship mortgage and the mode selection and system construction of the registration of the leasehold, as well as the pertinence of the registration of the changes of the "ship", "ship in construction", with the particularity. Analysis.
In terms of research methods, this paper is based on induction and deduction, and the path between theory and case.
The first chapter is "the setting of the scope of study". In this chapter, the author defines the meaning of "real right" as "the right to direct the specific things directly", and thinks that the derivation of "to the world" and "exclusiveness" derived from it is the basis for the choice of the mode of change of the ship's real right. The author thinks that the "construction ship" can be the conclusion of "specific objects" without "making up". The author thinks that the investigation of the change of real right should be taken as the self of the real right in order to avoid confusion in concept. On the basis of defining the meaning of "ship right" in the current law of our country, the author limits the scope of this article to the change of the ship's intention to change the real right. A dynamic study.
The second chapter is "the necessity of establishing the principle of changing the ship's real right". By clarifying the role of the basic principles of the law, the author clarifies the necessity of establishing the principle of the change of the ship's real right.
The third chapter is the characteristics of "ship" and the generality of "change of real right". On the basis of the summary of "property" and "commonality", the author clarifies the basic choice of ship property change mode through the value of "transaction convenience" and "transaction safety" from the attribute of "quasi real estate". Thinking.
The fourth chapter "the establishment of the principle of change of ship property" is the core content of this article. Under the "public notice principle", the author sums up and summarizes the relevant systems at home and abroad in the field of registration of ship property changes. On the basis of comparing the advantages and disadvantages of "registration antagonism" and "registration essentials", the author tends to "register" Under the "principle of public belief", the author emphatically expounds the significance of giving the credibility of registration, and puts forward his own views on the possibility and the concrete route of the construction of the "credibility" system in the field of registration in the future: except for the original registration, there is no "substantive examination". In the future, the focus of future reform should be the establishment of the corresponding state compensation system and the further openness and transparency of the information of the register. Under the "distinction principle", the author thinks that the theory of "distinction principle" and "real right behavior" should be reasonable for real life. Under the premise of adopting the "registration principle" as the core of the system, it is necessary to accept the "principle of distinction" to realize the self consistency in theory and the guiding value to practice.
【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】：D913
本文编号：2144517
[Abstract]:In order to achieve a good combination of the traditional theory of civil law and the study of maritime law, this paper selects the change of the ship's real right as a research topic: To compare the consideration of different legislative patterns, to analyze the provisions of the current law, to discern the profound meaning of the intention of the legislation, and on the analysis for the corresponding legislative suggestions.
This paper focuses on the change of property rights due to legal action, the focus of the study is on the registration of changes in ownership of ships, the registration of the change of ship mortgage and the mode selection and system construction of the registration of the leasehold, as well as the pertinence of the registration of the changes of the "ship", "ship in construction", with the particularity. Analysis.
In terms of research methods, this paper is based on induction and deduction, and the path between theory and case.
The first chapter is "the setting of the scope of study". In this chapter, the author defines the meaning of "real right" as "the right to direct the specific things directly", and thinks that the derivation of "to the world" and "exclusiveness" derived from it is the basis for the choice of the mode of change of the ship's real right. The author thinks that the "construction ship" can be the conclusion of "specific objects" without "making up". The author thinks that the investigation of the change of real right should be taken as the self of the real right in order to avoid confusion in concept. On the basis of defining the meaning of "ship right" in the current law of our country, the author limits the scope of this article to the change of the ship's intention to change the real right. A dynamic study.
The second chapter is "the necessity of establishing the principle of changing the ship's real right". By clarifying the role of the basic principles of the law, the author clarifies the necessity of establishing the principle of the change of the ship's real right.
The third chapter is the characteristics of "ship" and the generality of "change of real right". On the basis of the summary of "property" and "commonality", the author clarifies the basic choice of ship property change mode through the value of "transaction convenience" and "transaction safety" from the attribute of "quasi real estate". Thinking.
The fourth chapter "the establishment of the principle of change of ship property" is the core content of this article. Under the "public notice principle", the author sums up and summarizes the relevant systems at home and abroad in the field of registration of ship property changes. On the basis of comparing the advantages and disadvantages of "registration antagonism" and "registration essentials", the author tends to "register" Under the "principle of public belief", the author emphatically expounds the significance of giving the credibility of registration, and puts forward his own views on the possibility and the concrete route of the construction of the "credibility" system in the field of registration in the future: except for the original registration, there is no "substantive examination". In the future, the focus of future reform should be the establishment of the corresponding state compensation system and the further openness and transparency of the information of the register. Under the "distinction principle", the author thinks that the theory of "distinction principle" and "real right behavior" should be reasonable for real life. Under the premise of adopting the "registration principle" as the core of the system, it is necessary to accept the "principle of distinction" to realize the self consistency in theory and the guiding value to practice.
【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】：D913
【引证文献】
相关硕士学位论文 前3条
1 张振明;论船舶所有权变动的条件[D];大连海事大学;2010年
2 刘婧媛;造船合同的法律规制问题研究[D];华东政法大学;2011年
3 刘鹏;金融危机下我国船厂的法律风险及对策研究[D];大连海事大学;2010年
，本文编号：2144517
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