建造中船舶抵押权问题之研究
发布时间：2018-07-31 17:53
【摘要】： 近年间,我国船舶工业发展迅猛,年造船产量屡创新高,在国际造船领域占据重要地位。现代造船业是资本、技术高度集中的行业,在船舶建造过程中资金问题一直以来都是造船方的一大困扰。以建造中船舶设立抵押,不转移船舶占有的同时融得资金的做法成为目前国际造船融资的流行趋势。但在我国,适用于该领域的国内法律制度并不完善,《海商法》仅在第14条确认了建造中船舶可以设定船舶抵押权,新颁布的《物权法》也只是在第180条规定正在建造的船舶可以设立抵押,并在188条规定了此种抵押采登记对抗主义,缺乏具体的细化规定,《中华人民共和国船舶登记条例》在船舶所有权登记一章中简单提到“建造中船舶申请所有权登记需提供船舶建造合同”,《担保法》对于建造中船舶抵押的规定几近空白。2006、2007、2008年,江苏、山东、辽宁、江西等地作为试点试行的《建造中船舶抵押融资办法》,还不具备调整全国范围建造中船舶抵押融资的法律效力,建造中船舶的抵押融资因缺乏完备的法律支持而裹步不前。如是,建造中船舶的抵押融资问题成为近年来海商法领域研究的重点议题,亦有不少学者悉心研究并著述,本文在吸收借鉴前人研究成果的基础上结合行业现状,对建造中船舶的抵押权相关法律问题进行深入研究。本文分成四个章节,就几个重要的问题进行一定的探讨和研究。 第一部分,主要是对建造中船舶抵押权的概述。分析建造中船舶抵押权的含义,将《物权法》中对浮动抵押的规定引入建造中船舶抵押融资,得出建造中船舶之上设立抵押在学理和法律上的合理性。对比船舶抵押权深入研究建造中船舶抵押权自身的特点,更加合理、科学的认识建造中船舶抵押权。 第二部分,主要研究建造中船舶抵押权的主体、客体,重点对比分析国际上有关于起始时间界定的三种学说,“龙骨安放说”、“第一块钢板切割说”、“证明文件说”,结合民法理论和我国的现实需要,指出《船舶登记条例》及《试行办法》中采用“龙骨安放说”并不合理,采用“第一块钢板切割说”更具说服力。对船舶建造合同分析定性,讨论国际流行学说之加工承揽合同说,买卖合同说和混合合同说的利弊,结合我国实践中做法,得出分阶段界定合同性质最为合理。并在此基础上明确建造中船舶的所有权归属,即有权就建造中船舶设立抵押的适格抵押人。 第三部分,主要探讨建造中船舶抵押权的设立及登记问题。在具备前述适格主体、客体的前提下,分析研究建造中船舶抵押权的设立时间,并提出笔者建议。比较各国法与我国《船舶登记条例》、《试行办法》中关于建造中船舶抵押权登记的法律规定,最后就登记条件、需提供的文件、登记事项等具体操作性问题提出笔者建议。 第四部分,主要围绕建造中船舶抵押权的实现展开讨论,深入剖析建造中船舶抵押权的效力,阐述传统抵押权实现方式适用于在建船舶时的不合理,为最大程度的保障抵押权人的利益,提出在建造中船舶抵押融资领域引入让与担保的设想,力求船舶建造得以完成,以完整的船舶价值保障抵押权的实现。 本文对建造中船舶抵押权涉及的重点问题进行了较为系统的研究,希望能对建造中船舶抵押融资专项立法有所建议,为我国船舶工业的发展献上绵薄之力。
[Abstract]:In the recent years, China's shipbuilding industry has developed rapidly, the annual shipbuilding output has been innovating and high, and it occupies an important position in the field of international shipbuilding. The modern shipbuilding industry is an industry with high concentration of capital and technology. In the process of shipbuilding, the problem of capital has always been a major problem for the shipbuilders. The practice of financing funds has become a popular trend in international shipbuilding financing. But in our country, the domestic legal system applicable to this field is not perfect. "Maritime law" only confirms that the ship can set the ship mortgage in the fourteenth article. The newly issued "property law" can also be set up in the 180th provisions of the ship being built. In the 188 article, the 188 article stipulates the registration antagonism of this kind of mortgage, and lacks specific provisions. "The regulations of the ship registration of the ship" simply mentioned in the chapter of the registration of ship ownership that the "ship construction contract for the application of ownership in the construction of ships in the construction should be provided by the ship construction contract". In white.200620072008, Jiangsu, Shandong, Liaoning, Jiangxi and other places were tested as a pilot trial of mortgage financing in the construction of ships, and they did not have the legal effect to adjust the mortgage financing of ships throughout the country. The mortgage financing in the construction of ships was not in advance because of the lack of complete legal support. For example, mortgage financing in the construction of ships. The problem has become a key issue in the field of maritime law research in recent years, and many scholars have been careful to study and write. In this paper, on the basis of absorbing the achievements of previous studies and combining with the current situation of the industry, this paper makes a thorough study of the legal issues related to the mortgage of ships in the construction. This article is divided into four chapters, and some important issues are carried out. Discussion and research.
The first part is an overview of the mortgage right in the construction of the ship, the analysis of the meaning of the ship mortgage in the construction, the introduction of the provisions of the floating mortgage in the property law into the mortgage financing in the construction, and the rationality of the doctrine and the law on the establishment of the mortgage on the ships in the construction. The characteristics of the right to mortgage are more reasonable and scientifically understand the mortgage of ships in construction.
The second part mainly studies the subject and object of the ship mortgage in the construction, the object, and the emphasis on the comparison and analysis of the three theories on the definition of the starting time. "The dragon bone put on", "the first piece of steel plate cutting", "the proof of the document", and the theory of civil law and the actual needs of our country, point out the regulations of ship registration and the method of trial. It is not reasonable to adopt the "dragon bone placement theory", and it is more persuasive to adopt the "first piece of steel plate cutting theory". The analysis and qualitative analysis of the shipbuilding contract of the ship, the discussion of the contract theory of international popular theory, the advantages and disadvantages of the sale contract and the mixed contract theory, combined with the practice in our country, draw a stage to define the most reasonable nature of the contract. On this basis, the ownership of the ship under construction is clearly defined, that is, the right mortgagee to set up a mortgage on the ship under construction.
The third part mainly discusses the establishment and registration of ship mortgage in construction. On the premise of having the former subject and object, the author analyzes and studies the time of setting up the mortgage of ships in the construction, and puts forward the author's suggestions. Finally, the author puts forward some suggestions on the specific conditions of registration, such as registration conditions, documents to be provided, registration items, and so on.
The fourth part mainly focuses on the discussion of the realization of the mortgage of the ship in the construction, deeply analyzes the effectiveness of the ship mortgage in the construction, and expounds that the traditional way of mortgage realization is not reasonable when it is built in the construction of the ship, and to ensure the interests of the mortgages to the maximum extent, and puts forward the introduction of the transfer guarantee in the field of mortgage financing in the construction of the ship. We want to strive for the completion of shipbuilding and guarantee the realization of mortgage with the value of the whole ship.
This paper makes a systematic research on the key issues involved in the mortgage of the ship in the construction, and hopes to make some suggestions on the special legislation of the ship mortgage financing in the construction, and give a little effort to the development of the shipbuilding industry in China.
【学位授予单位】：中国海洋大学
【学位级别】：硕士
【学位授予年份】：2009
【分类号】：D923
本文编号：2156373
[Abstract]:In the recent years, China's shipbuilding industry has developed rapidly, the annual shipbuilding output has been innovating and high, and it occupies an important position in the field of international shipbuilding. The modern shipbuilding industry is an industry with high concentration of capital and technology. In the process of shipbuilding, the problem of capital has always been a major problem for the shipbuilders. The practice of financing funds has become a popular trend in international shipbuilding financing. But in our country, the domestic legal system applicable to this field is not perfect. "Maritime law" only confirms that the ship can set the ship mortgage in the fourteenth article. The newly issued "property law" can also be set up in the 180th provisions of the ship being built. In the 188 article, the 188 article stipulates the registration antagonism of this kind of mortgage, and lacks specific provisions. "The regulations of the ship registration of the ship" simply mentioned in the chapter of the registration of ship ownership that the "ship construction contract for the application of ownership in the construction of ships in the construction should be provided by the ship construction contract". In white.200620072008, Jiangsu, Shandong, Liaoning, Jiangxi and other places were tested as a pilot trial of mortgage financing in the construction of ships, and they did not have the legal effect to adjust the mortgage financing of ships throughout the country. The mortgage financing in the construction of ships was not in advance because of the lack of complete legal support. For example, mortgage financing in the construction of ships. The problem has become a key issue in the field of maritime law research in recent years, and many scholars have been careful to study and write. In this paper, on the basis of absorbing the achievements of previous studies and combining with the current situation of the industry, this paper makes a thorough study of the legal issues related to the mortgage of ships in the construction. This article is divided into four chapters, and some important issues are carried out. Discussion and research.
The first part is an overview of the mortgage right in the construction of the ship, the analysis of the meaning of the ship mortgage in the construction, the introduction of the provisions of the floating mortgage in the property law into the mortgage financing in the construction, and the rationality of the doctrine and the law on the establishment of the mortgage on the ships in the construction. The characteristics of the right to mortgage are more reasonable and scientifically understand the mortgage of ships in construction.
The second part mainly studies the subject and object of the ship mortgage in the construction, the object, and the emphasis on the comparison and analysis of the three theories on the definition of the starting time. "The dragon bone put on", "the first piece of steel plate cutting", "the proof of the document", and the theory of civil law and the actual needs of our country, point out the regulations of ship registration and the method of trial. It is not reasonable to adopt the "dragon bone placement theory", and it is more persuasive to adopt the "first piece of steel plate cutting theory". The analysis and qualitative analysis of the shipbuilding contract of the ship, the discussion of the contract theory of international popular theory, the advantages and disadvantages of the sale contract and the mixed contract theory, combined with the practice in our country, draw a stage to define the most reasonable nature of the contract. On this basis, the ownership of the ship under construction is clearly defined, that is, the right mortgagee to set up a mortgage on the ship under construction.
The third part mainly discusses the establishment and registration of ship mortgage in construction. On the premise of having the former subject and object, the author analyzes and studies the time of setting up the mortgage of ships in the construction, and puts forward the author's suggestions. Finally, the author puts forward some suggestions on the specific conditions of registration, such as registration conditions, documents to be provided, registration items, and so on.
The fourth part mainly focuses on the discussion of the realization of the mortgage of the ship in the construction, deeply analyzes the effectiveness of the ship mortgage in the construction, and expounds that the traditional way of mortgage realization is not reasonable when it is built in the construction of the ship, and to ensure the interests of the mortgages to the maximum extent, and puts forward the introduction of the transfer guarantee in the field of mortgage financing in the construction of the ship. We want to strive for the completion of shipbuilding and guarantee the realization of mortgage with the value of the whole ship.
This paper makes a systematic research on the key issues involved in the mortgage of the ship in the construction, and hopes to make some suggestions on the special legislation of the ship mortgage financing in the construction, and give a little effort to the development of the shipbuilding industry in China.
【学位授予单位】：中国海洋大学
【学位级别】：硕士
【学位授予年份】：2009
【分类号】：D923
【引证文献】
相关期刊论文 前1条
1 刘安宁;;试论在建船舶抵押权实现的新方式[J];大连海事大学学报(社会科学版);2012年03期
相关博士学位论文 前1条
1 刘安宁;船舶抵押权立法的比较研究[D];大连海事大学;2011年
相关硕士学位论文 前1条
1 李璇;建造中船舶抵押权相关法律问题研究[D];大连海事大学;2010年
，本文编号：2156373
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