Research On Arrest And Auction System Of Financial Leasing Ship

The legal relation of ship finance leasing is different from other kinds of ship leasing relations in China maritime law.The lessee's control over the ship is closer to the owner of the ship than the lessee in the legal relationship of the other ships,or even the actual owner of the ship.And although the lessor is in name of the ownership of the ship,but its substantially similar to the mortgagee of the ship,the ownership for the rights of the ship is more a kind of Collateral than Ownership.However,it is precisely because of the incongruity between the name and the substance in the legal relationship of the ship finance leasing,which causes a lot of discomfort in the process of ship arrest and auction.On the one hand,it is doubtful whether the third party can arrest the finance leasing ship.In our country,the seizure of the finance leasing ship is according of the seizure of bareboat chartering ship,which is no problem in the case of direct leasing,after-sale and re-lease.Because the control over the ship of lessee of finance leasing is closer to ownership than the bareboat charteror.If bareboat charter vessel can be arrested,the finance leasing ship has no reason to not being arrested.But in the case of entrusted leasing and leveraged leasing,the principalor the owner lessor who is ship's owner has no financing lease agreement with the lessee,and therefore not can meet the requirements of arresting bareboat charter vessel,which cannot be legally seized.On the other hand,whether the lessor can arrest the ship registered under his name also has legal obstacles.As provided by article 12 of the Maritime procedure law,the property can be arrested is limited to property of the applicant,it is conceivable that,it is failed to take the particularity of ship financing lease legal relationship into consideration at the beginning of the legislation,after all,the lessee is the the owner of the ship actually.On that account,we can replace the arresting procedure by maritime injunction when the law is not clear.But in the long run,we should allow the lessor to seize the financing lease ship.In terms of the auction of the finance leasing ship,the contradiction between the legal relationship of the ship finance leasing and the essence is also reflected.First,it is also doubtful whether the ship can be auctioned off,and the reason is the same as that of the ship that can be seized.The second is the whether creditor's rights of the rent of lessor can be registered in the procedure of registration of claims.With my perspective,the creditor's rights which can be able to registered in the procedure of registration of claims shall include the real rights for security right on ships and the 22 kinds of maritime claims listed in article 21 of the Maritime procedure law,the lessor's creditor's rights also included in the 22 kinds of maritime claims listed in article 21 of the Maritime procedure law;The third problem is that the lessor's order for ship auction price.In accordance with the current law of ship auction price,the lessor is in the last party who get the price of ship auction,which ignored the protection of lessor.At least,the sequence of the lessor is suggested to be equal status with general maritime claims.However,this still does not accord with the essence of the lessor's rightof ownership,and the ideal sequence of compensation should be at least priority to the ordinary creditor's rights and the auction applicants.In short,the law should recognize the essence of ship finance leasing.The essence of the relationship between lessee and the lessor is borrowing and guarantee.The relationship of the lessor for the ownership of the vessel is essentially security right,and the lessee is in essence the owner of the ship.