Ship Property Rights Changes

Focusing on the "creation, alteration and transference of property right of ships", this article makes a study of maritime law in the way of traditional theory of civil law. In this article, the author tries to present some useful advices for the amendment and perfection of relevant legislation, through the way of comparing different legislation modes, analyzing current domestic rules and clarifying the consideration behind legislation."Creation, alteration and transference of property right" arising from the "declaration of civil subjects' will" is of its special characteristics. Therefore, the author makes his research on the selection and construction of the "registration mode & system" of creating, altering and transferring "the proprietary rights of ships", "the mortgage rights of ships" and "the rights under demise chartering of ships", which are all resulted from the "declaration of civil subjects' will". In addition, the author tries to make some special analysis on the above mentioned "registration mode & system" of "ships under construction".As to research methods, the authors makes his research on the basis of the "theoretic analysis" and the "analysis of cases", following the methods of "induction" and "deduction".In Chapter 1 "Scope of Research", the "property right" is identified as "the right to dominate special properties". Accordingly, the "property right" shall be of the nature of "being against any parties in the world" and "being immunized from any interference of any parties in the world". In the author's opinion, when we select the mode of "creating, altering and transferring property rights of ships", we shall put the above mentioned nature in mind.Upon the analysis of "special property", the author draws a conclusion that, even without any "simulation", "the ship under construction" still falls within the concept of "special property".The author holds that, in order to avoid the confusion of relevant concepts, we shall make our research from the aspect of the "property right" itself.After clarifying the meaning of "property right of ships" in current Chinese laws, the author makes it clear that he will make his research on "the property rights of ships" arising from the declaration of civil subjects' will.In Chapter 2 "Necessity of Establishing the Principles of Creating, Altering and Transferring Property Rights of Ships", the author lists the benefits of these principles after stating the functions of basic legal principles.In Chapter 3 "Special Characteristics of 'Ships' & Common Characteristics of 'Creating, Altering and Transferring Property Rights'", the author makes a summary of the above mentioned "special characteristics" and "common characteristics" at first. Then the author establishes the basic frame of this article: making his researches by considering upon "facility of transactions" and "security of transactions", based on the nature of "quasi-real property".Chapter 4 contains the essential content of this article, "Principles of Creating, Altering and Transferring Property Rights of Ships".As to the principle of "property publication", the author shows his inclination to the reform based on "the creation mode of registration", instead of the one based on "the defensible mode of registration", by summarizing relevant modes, systems and provisions in different countries, and comparing the two choices of reform.As to the principle of "indication validity", the author discusses the importance of the principle applied in the registration of "creating, altering and transferring property rights of ships" at first; then, as for the possibility and concrete ways of constructing the system of "indication validity" in the area of the aforesaid registration, the author presents the opinions and advices of himself: As for the creation, alteration and transference of property right of ships, the aim of "indication validity" can be approached without "material examinations" (as an exception, the "indication validity" of "original registration" shall be given upon "material examinations"), therefore, the future reforms shall emphasize on constructing relevant compensation systems and opening registration information to the public.As to the principle of "distinguishing 'the juristic act' from 'the will of creation, alteration, transference of property rights'", the author holds that:(1) this principle and "the theory of juristic act" shall be deemed as a reasonable abstraction of real life.(2) if "the creation mode of registration" is accepted as the frame of future reforms, the acceptance of this principle is the only way to a self-consisted theory.In Chapter 5 "Creation, Alteration and Transference of Proprietary Rights of Ships under Construction", and Chapter 6 "Creation, Alteration and Transference of Mortgage Rights of Ships under Construction", the author makes an in-depth analysis of relevant problems regarding ships under construction. Especially, the author discusses certain problems arising from replanting foreign systems in this area.In Chapter 7 "Creation, Alteration and Transference of Usufructuary Rights of Ships", the author makes his research upon the registration system of demise chartering of ships, through theoretic analysis and the analysis on a certain case. As a conclusion drawn therefrom, the author holds that, the affairs as to the registration of demise chartering of ships shall be governed by certain provisions with definite legal effect in the Maritime Code or the Laws as of the same legal effect, for the protection of third parties.