| According to the Maritime Law of PRC, the mortgage can be established on the ship under construction. However, there are no specific provisions concerning on how to establish and realize the mortgage. Therefore, the realizing of the mortgage of ship under construction shall refer to the Article 195 of Property Law of PRC. The value of ship under construction is characterized as floating, however, the means of realizing the right to mortgage in Article 195 cannot conform to the character of ship under construction and cannot realize the most value of the ship under construction. Meanwhile, the legislation of other countries regarding to this part also cannot solve this problem effectively. Therefore, in order to conform to the character of floating of the ship under construction, we ought to establish a new mean of realizing the mortgage of ship under construction.Regarding the new mean of realizing the mortgage of ship under construction, the unanimous opinion is that we shall establish a new system to solve this problem. The academics had provided 3 opinions for the new system, and they are “Receivers”, “Transferring Guarantee” and “Agreement for Realizing” separately. Comparing these three means, we find that the system of Receivers can perfectly conform to the character of floating of the ship under construction and realize its most value. However, due to the difference of legal system of China and UK, there are manyproblems concerning about the specific regulations of Receivers. The “Transferring Guarantee” also can protect the right of mortgagee and reduce the cost to realize the mortgage. However, the problem is the “Transferring Guarantee” is conflict with the chattel mortgage, which is already existed and effective in the Property Law of PRC. The “Agreement for Realizing” can combine the some advantages of both “Receivers” and “Transferring Guarantee”, however, whether law should stipulate this is still a question. Another question of this is that if there are no specific provisions concerns about how to handle the mortgage in this agreement, what we should do about it.Comparing the foreign legislation and the new means of realizing the mortgage, the article takes the view that the Receivers shall be the new mean of realizing the mortgage to ship under construction. Meanwhile, we shall agreeboth parties can reach an agreement that auction or convert the mortgaged property into money is their way to realize the mortgage.As to the specific regulation of the Receivers, the article takes the view that both the court and mortgagee are entitled to appoint the receivers, but the appointment from mortgagee should be checked by court. And both individual who have relevant experience in the ship building industry and agency such as law firm and account firm can be appointed as Receiver. Moreover, individual who fall into the following situations cannot be appointed as Receivers: committed crime, deprived of relevant certificate and had some other situations the court think it is not appropriate. The appointment is effective as of relevant documents are delivered to the mortgager. Regarding to the identity of the Receivers, the Receiver shall be the agent of the company, the trustor of the company as well as the officer of the company. Meanwhile, regarding to the scope of rights of Receivers, the article think that it shall consider both the character of the ship under construction and relevant regulations of receiver in bankruptcy, and the obligation of Receiver refers to the duty of good faith. If there existed several floating mortgages in one ship, the mortgagees can appoint theirreceiver jointly and separately. As to the fund of continuing to build this ship, the article takes the view that the mortgagee can provide this part of money to continue to build this ship. As a result, it shall enjoy the added value of the ship. Moreover, provisions of floating charge in Property Law of PRC and receiver in bankruptcy in the Bankruptcy Law of PRC shall be adjusted to the Receivers. |
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