Study Of Ship Mortgage’s Foreclosure Under China Law

The promulgation of Real Right Law of the People’s Republic of China had an influence on realization of ship mortgage. By analyzing and discussing legislated status of related legal issues about realization of ship mortgage, could make ship mortgage been better implemented after reorganizing and summarizing, so as to better protect the interests of the mortgagee. The latest revision of the Civil Procedure Law has cause great concern of academic scholars. The amended Civil Procedure Law has added content of security on property in chapter of special procedure, this brought thinking of realization of security on property. Under title of ship system, whether the realization procedure of title of ship would be impacted because of latest law’s issue is a question worth discussing. Therefore, through the amendment of Civil Procedure Law, detailed analysis and combing legislation status on realization condition and realization procedure of ship mortgage will be a new tendency of development.After author’s combing on current substantive law’s regulation of ship mortgage’s setting condition and realization condition, and further discussion on connection issues of new Civil Procedure Law and Maritime Procedure Law. Author believes there is no conflict, and they can be parallel suited. Under Maritime Procedure Law, the specific procedure of mortgagee’s realization of ship mortgage includes steps like arrest of ship, review and release orders of arrest of ship, bring an action or apply for arbitration, apply to the court for auction of a ship and the credit registration and repayment, etc. In the mean time, author thinks that the non-litigation procedure of the new Civil Procedure Law can be applied to realization of ship mortgage. The realization procedure of ship mortgage is a special procedure. It is different from the procedural preservation under Maritime Procedure Law, and Maritime Procedure Law can not exclude the application of realization procedure under Civil Procedure Law. This is a major innovation of this essay.After demonstrating the realization of ship mortgage can apply non-litigation procedure, author makes a specific analysis on non-litigation procedure of ship mortgage’s realization. First, the jurisdiction should not be simply regulated as grass-root courts, it should stipulated different maritime court such as ship docked courts; Secondly, after discussion about extent of applicant, the applicants should be expanded from ship mortgagee to ship mortgage and person entitled with maritime liens, etc. In the end, by analyzingjudicial review standards should mainly depend on formal review, the substantive review as a supplement, make a clear point that verdict and notarized contract of ship mortgage can be used as basis of execution. This is author’s bold attempt on latest legislation of ship mortgage’s non-litigation procedure, also the biggest bright spot of this essay.