Some Problems Of Real Right Of Ship According To The Suggestion Of Real Law Draft Of China

For the reasons of history and the development of legislation, there have not been any concepts of real law in China. Just because of this, there are no relative concepts of real right in our civil and commercial law. For example, there are no concepts of real right of ship and other definitions in our Maritime Code. The Suggestion of Real Law Draft of China (I call it Suggestion of Real Law below) has the important role of reference. Based on this Suggestion of Real Law, this Article has done some research on real right of ship.This Article is divided into five parts. The first part discusses whether the Maritime Code should establish the concepts of real right of ship. Firstly I have discussed the theory research and legislation of real law in our country and other countries. And then I have discussed development of the legislation of real right of ship and the need of establishing the concept of ship real right in our Maritime code. The conclusion is that the establishment of the concept of real right of ship is unavoidable .We should establish the concept of real right of ship at the time we establish the concept of real right.The second part is about proprietary right, and in this part I raise three questions. The first one is what kind of concept of proprietary we should establish, the mode of abstraction or the mode of enumeration. The conclusion is that we should establish the concept of abstraction instead of enumeration. The second one is the question of ship under construction. This Article first discusses that the ship under construction may and should establish the concept of ownership, and then discusses the acquisition and the manner of pubic summons. The third one is that Suggestion of Real Law cancels the" joint coownership", and the effect resulting from this change.The third part is about the mortgage. And in this part I also discuss three questions. The first one is whether the third party can be the mortgager According to the Maritime Code, the third party can not the guarantee others' debt with his own ship. But according to the Suggestion of Real Law and the legal theory, this limitation is not necessary. The second one is whether undividablil'rty of mortgage can be applied to mortgage of ship. The Suggestion of Real Law provides that mortgage is undividable, while the Maritime Code provide that the motgage can be partly transferred to others. After analyzing, I have given advices that we should obey the provision of the Suggestion of Real Law. The third question is whether the provision of real subrogation of mortgage can be applied to the mortgage of ship. Theconclusion is that the scope of real subrogation of mortgage after the loss or damage of ship should be in consistence with that stipulated by the Suggestion of Real Law.The fourth part is about possessory lien. The first one is whether the provision of acquisition by good faith can be applied to possessory lien. The conclusion is that the mender and the builder of ship are entitled to acquire the ship according to the contract, and "good faith" is not necessary. The second question is whether the possessory liener has the right of real subrogation after the loss of ship. And the conclusion is that we should admit the right of property subrogation .The fifth part is whether a maritime lien can be regarded as a real right for security. The conclusion is positive. In light of its characteristics ,when the Maritime Code is mended ,the maritime lien should be in the scope of real right for security.Honggang Sun(Maritime law) Directed by Zhengxiong Jiang...