On Real Rights For Security In Ships And Their Positions In Chinese Real Right Law

The real right has close relationship with the development of national economy. It is the core of the civil law and very important to the whole law science. The importance of the real right for security has far exceeded the real right for usufruct because of the requirement of the financing in the environment of the market-oriented economy. In the field of the maritime law, the real rights for security in ships occupy three among four rights, and three international conventions related to them. So the importance of the real rights for security in ships can be easily seen. Though the Maritime Code of the Republic People of China is an advanced law, as time goes by, its shortages can be found in practice. In this dissertation, the author mentions some shortages of the real rights for security in ships through comparing Maritime Code of the Republic People of China to international conventions and the Maritime Law of some other countries and then makes some suggestions according to the reality of our country. At the same time, the author classifies the real rights for security in ships as special real rights in the civil law and gives some advices to the real right for security from the perspective of special law. There are for chapters in this dissertation including the first as the summary and the other three as divided parts. In the first chapter, the author analyzes the real right in summary firstly. The conception of the real right is that a right of dominating a special property and enjoying its interest. It is essential for the real right to be absolute and it is jus in re. Then comes the specialty of rights in ships. Maritime Code of the Republic People of China is a special law to the civil law and the real rights in ships are real rights whose object are ships, so the author believes the real rights in ships are real rights in special laws. After studding common rules of the real right and the general character of its theory, the maritime law should concentrate on the specialty of the real rights in ships. We should pay attention to the harmony of the real rights in ships and the real right of the civil law on legislation and adopt rules in the maritime law as priority. Real rights for security in ships firstly are real rights for security in the civil law, so they have the same function as the real right for security in the civil law. Secondly, they have their own functions and adjust special scopes. In the last part of this chapter, the author studies and introduces its developing history because it is very important to the financing in shipping and to secure some special maritime claimants. Then the author analyzes the specialty of the real right for security in ship from five aspects including subject of right, object, way of public summons, way of exercise and priority of different kinds. This chapter is the theoretical foundation of this dissertation. The second chapter is about the ship mortgage,which be classified as the real right for security. Although ships are movables, the maritime law creates the right to mortgage refer to immovable in application considering economical reasons, legal reasons and the uniform with international conventions. This is the specialty of the ship mortgage and we need special rules to adjust it. Then the author makes several explanations about the conception of the ship mortgage in Maritime Code of the Republic People of China. One of the reasons that the maritime law creates the ship mortgage instead of the ship pledge is that the ship mortgage is a better choice in making use of the security. On the other hand, almost all countries have created nearly perfect system of registry makes it possible that ships can be objects of the ship mortgage whether in public laws or private laws. After the analysis of the obtainment, the transfer and the elimination of the ship mortgage, the author puts emphasis on the validity of registry of the ship mortgage, the third party and the enlightenment of the ship mortgage to the real right in the civil law. The author thinks our current system of registry has bad effect on securing deals and then defines the third party as the third party who obtains the ship mortgage acting in good faith according to the law. And the author suggests two functions of securing credit and satisfying investment should be added to the ship mortgage to make it compatible with the trend of international legislation and then considers that the intervention of the court is a better choice to obligee. The third chapter is about the possessory lien on ship. It is also a kind of real right for security. Through the comparisons of the conception, attributions, and specialties of lien in the civil law and the possessory lien on ship, the author summarizes the specialty of the possessory lien on ship and analyzes its obtainment, transfer and elimination. The author makes some comparisons of the possessory lien on ship and the maritime lien on ship and the ship mortgage, and summarizes some differences among them. The conception of the possessory lien on ship is too narrow in its adjusting sphere, for it only embraces making ships and repairing ships. The validity of the possessory lien on ship lies behind the maritime lien on ship is not reasonable. Maybe the best way to realize the possessory lien on ship is the auction by court.