Research On The Realizing Procedure Of Vessel’s Real Rights Forsecurity

The substantive stipulation concerning the ship’s real rights for security, such as mortgage of ship, maritime lien and possessory lien,has been made in the China’s Maritime Law Code in which the application of realization procedures of ship’s real rights for security is not clearly defined. Consequently, the realization of ship’s real rights for security has long been attached to the main creditor’s rights realizing through lawsuit in the maritime judicial practice.The Civil Procedure Law has come into force on January1st2013,and produced one new section "the Cases of Implementation of Real Right for Security" which made it clear that the noncontentious procedure can be applied to the realization of the real rights for security. Besides, according to the Civil Procedure Law, the substantive law basis for the realization of real rights for security is the Real Right Law and other law. Therefore the realization of ship’s real rights for security stipulated in China’s Maritime Law Code can also be applied to the noncontentious procedure. In maritime practice, as the maritime lien is realized through arresting ship by court which has an impact on the realization of ship’s mortgage and possessory lien, the general way realizing ship’s mortgage and possessory lien is also the same as the maritime lien does.The procedure of real right for security provides the possibly independent implementation for the ship’s real right for security. To a certain extent, it can weaken the effect of the realization of maritime lien upon the realization of ship’s mortgage and possessory lien.The procedure of real right for security is still at the stage of exploration in the civil judicial action, so there is no rules for reference. In addition, the ship’s real right for security is largely different from the common real right for security, so the general procedural rules of the implementation of real right for security can not be applied directly. Therefore, research on issues related to the ship’s real right for security program will make "the Cases of Implementation of Real Right for Security "in Civil Procedure Law more effectively applied in the maritime field, and make the ship’s real right for security play better guarantee function.This paper has based on the China’s Maritime Law Code, the Real Right Law, the Special Maritime Procedure Law and the Civil Procedure Law, combining with the relevant theory of legal procedures, and studied the implementation procedures of ship’s real rights for security on the whole, and tries to get a systematic understanding of the implementation procedures of ship’s real right for security. This paper is divided into four parts. In the first part, the author has made a definition of the implementation procedures of ship’s real right for security, and pointed out that the nature of the implementation procedures of ship’s real right for security is noncontentious procedure, and further analyzed its particularity. In the second part, the author has discussed the factors considered in determining jurisdiction in the implementation procedures of ship’s real right for security, and the effect of ship arrest procedure to determining the court in territorial jurisdiction, and pointed out that in the event of conflict of jurisdiction of the case, the court who has arrested the ship and the court in agreement has priority. In the third part, the author has analyzed the eligible applicants of the implementation procedures of ship’s real right for security. There are two kinds of eligible applicants, one kind is the holder of ship’s real right for security stipulated in Maritime Law, and the second category is the other holder of ship’s real right for security according to the provision of the Real Right Law,the maritime law and other law. The author mainly discusses the other holder of maritime lien, the other holder of possessory lien and the obligor of possessory lien in the second category. In the fourth part, the author has summarized some rules of the implementation procedures of ship’s real right for security, mainly analyzed the startup principles of the implementation procedures of ship’s real right for security,proof materials to be supplied, the court’s scrutiny standard and the relationship with the other related procedures as well as its transformation to lawsuit procedure.