Study On Mortgage Of Shared Ship Share

With the further development of China’s Marine power strategy,ships,as an important material carrier of Marine economic and social development,are playing an increasingly important role in China’s historical journey towards becoming a Marine power.Accordingly,how to better provide legalization guarantee for the ship financing market and orderly safeguard the legitimate rights and interests of relevant rights subjects has become an important content of maritime judicial services and safeguard the development of Marine economy,especially for the joint ownership of ships with multiple rights subjects and interwoven interests.Improving the mortgage system for the share of ships is not only an important part of stimulating the vitality of the ship financing market,but also an important part of optimizing the business environment.Although the judicial practice acknowledges the effective establishment of the mortgage of the share of ships,it is not registered,the mortgage has no get antagonistic effect.In other words,the mortgage of shared ship share has been legally recognized in the validity of the guarantee contract,but there are still legal obstacles in the validity of the real right confrontation.However,the reason for this hindrance is not that the parties are unwilling or inactive to register the mortgage,but the mortgage registration of the share of ships has not been accepted by the ship registration authority.In addition,there are still some disputes about the establishment mode and realization way of the mortgage of shared ship share,which also makes the mortgage of shared ship share in an awkward situation.Therefore,it is necessary to strengthen the theoretical research on the mortgage of joint ownership ship share and further clarify the mortgage of shared ship share.As for the basic theory of mortgage of joint ships,it is clearly pointed out that the share mortgage system exists in the civil law system of China,and the understanding of different theories on the legal nature of mortgage of common ships is listed respectively.Although share is not ownership,but in content,nature and effectiveness are reference ownership.Therefore,the establishment of the joint ship share mortgage does not need the consent of other co-owners,and its legal attribute is the mortgage of rights.The registration of the mortgage right of joint ship shares shall be based on the maritime safety Administration as the registration authority,and the registration antagonism shall be adopted.Before the registration authority of the mortgage of ship share,the parties of the ship share can turn to the credit investigation center of the People’s Bank of China to complete the guarantee registration,so as to protect the rights and interests.As for the transfer of the mortgaged object of the share of ships,after comprehensively analyzes the influence of the free transfer rules on the mortgagee and other co-owners of the share of ships,and further puts forward the countermeasures.For example,the mortgagee may set a special clause prohibiting the transfer in the mortgage contract so as to prevent the alteration of the real right of the share of the mortgaged ship.Other co-owners may clearly specify the details of the ship’s share transfer in the co-ownership agreement and actively exercise the pre-emptive right within a reasonable period of time,but the hidden co-owners do not enjoy this right.The theoretical dispute about the mortgage of share of ships.Although the People’s Republic of China(Revised Draft for Comments)ostensibly stipulates "transfer of the mortgaged-ship shares",it does not mean that the only way to realize the mortgage of the shared ship shares is court auction.The realization of mortgage is mainly compensated by changing price,which is the concentrated embodiment of the value type of security real right,and also the basic characteristics of its content.Therefore,the realization of the mortgage of the share of a ship should not be limited to the auction form of the court according to law,but should take into account the compensation inherent in the change value of the mortgage itself,especially in the case that the parties fail to register the mortgage of the share of a ship in accordance with the law,the parties should be allowed to carry out self-relief.Finally,it is concluded that the Maritime security right takes precedence over the mortgage of the share of the ship in common,which in turn takes precedence over the creditor’s General claim.