Study On The Transfer Of Mortgaged Ships Under The Background Of The Civil Code

The provisions of the civil law of China in the transfer of collateral have been changing,and the provisions of the original Property Law,the Security Law and the General Principles of the Civil Law on the transfer of collateral have changed greatly.The introduction of the Civil Code amended the provisions of the original Property Law and established the "invalid requirements of transfer without notice",thus solving the conflict between the provisions of the original Property Law and the Guarantee Law,but this provision is different from the provisions of the Maritime Law on the transfer of mortgaged ships,resulting in disharmony in the application of the law.However,the Civil Code is a new law,the Maritime Law is an old law,the Civil Code is a general law,and the Maritime Law is a special law.According to the differences between the two,how to apply the law in the practice of the transfer of mortgage ships has become an urgent legal problem to be solved.This paper explores the evolution of the relevant civil legislation of the transfer of mortgaged ships and the reasons for the special nature of the provisions on the transfer of mortgaged ships under the background of the civil code.Under the background of the promulgation of the Civil Code and the revision of the Maritime Law in the Civil Code,the Civil Code,based on the particularity of the shipping field,based on the current mortgage transfer system,improves the relevant provisions of the objective situation.This move will be conducive to the coordination and unity of the law,reduce the legal contradictions,and bring great convenience to the justice and law enforcement.The author analyzes the evolution process and reasons of the provisions on the transfer of mortgaged property in the field of civil law,analyzes the particularity of the relationship of the maritime law and the subject of maritime law,and puts forward specific and feasible suggestions for the loopholes and problems of the provisions of the current maritime Law on the transfer of mortgage ships.The first part of the article analyzes the evolution of collateral transfer regulations under the field of civil law.Looking for the specific interest factors governing the transfer of the mortgaged property;the second part analyzes the causes of Article 17 of the Maritime Law,and compare the pros and cons;the third part improves the Maritime Law by amending specific laws,based on the particularity of the field of maritime law,the priority of the protection of goodwill third parties,the necessary legal coordination with the general civil law and the echo with Article 13 of the Maritime Law,the provisions of Article 17 of the Maritime Law into mortgaged ships and not,this is as the classification standard.The former adopts the "invalid transfer system if the creditors do not agree",the latter due to the existence of a third party,so should adopt "no notice or notification transfer invalid system".At the same time,give the mortgagee a right of mortgage registration request,give the buyer of the mortgaged ship the right to cleanse it.Article 11 and 20 of the Maritime Law are amended as supporting clauses,and the provisions of article 11 of the ship mortgage right of the Maritime Law are amended to add the intended realization situation,and the word "debt" is limited to "debt due".Expand the scope of the mortgaged ship subrogation in Article 20 of the Maritime Law,and include the insurance compensation and common Marine damage sharing expenses in the estimated total loss,so as to fairly balance the interests of the subject of the mortgaged ship transfer relationship.