船舶抵押权法律问题研究

发布时间：2018-06-10 00:49

本文选题：船舶抵押权 + 特性　；参考：《厦门大学》2001年硕士论文

【摘要】： 船舶担保物权包括船舶抵押权、船舶优先权、船舶留置权以及船舶质权诸种。但毫无疑问，船舶抵押权是最重要、也是运用最广泛的一种船舶担保物权。本文以船舶抵押权的特性及法律关系的构成为出发点，从民商法抵押权的基本理论和海商法的比较研究等角度，对船舶抵押权的登记、次序、侵害及其救济、消灭等问题进行分析阐述，并试图对我国船舶抵押权的现有法律规定进行评析，提出自己的修改意见。除前言及结语，本文共分六章。第一章船舶抵押权概述，分析了船舶抵押权的归属范畴及其区别于其它担保物权的特殊属性，对船舶抵押权的设定、标的及其效力进行了较为概括的阐述。第二章船舶抵押权登记，通过对各国立法例的比较，分析公示原则的不同主义在船舶抵押权设定上的表现；对船舶抵押权登记所对抗的第三人的相关问题进行法理剖析：对我国船舶抵押权登记的机构、程序和内容作了介绍。第三章船舶抵押权的侵害及其救济，论述了侵害船舶抵押权的三种类型、特点及构成要件，并对抵押权侵害的救济及损害赔偿原则和方法进行了探讨。第四章船舶抵押权的次序规则，阐述了在同一船舶上设有数个船舶抵押权时，各抵押权之间的次序规则。认为已登记的船舶抵押权效力恒优于未登记的船舶抵押权；在己登记的船舶抵押权间应采用次序升进主义，，次序在前的船舶抵押权消灭后，次序在后的船舶抵押权可以依次升位；先设定的船舶抵押权不仅对抵押船舶的价值而言是优先的，而且在清偿顺序上也是优先的。此外，在未登记的船舶抵押权之间应按成立的先后决定其优先的次序。第五章船舶抵押权的消灭，分析了可能导致船舶抵押权消灭的六种情况。第六章对完善我国船舶抵押权现有法律规定的若干建议。首先，提出我国《民法通则》、《海商法》和《担保法》对船舶抵押权的设定的规定存在立法冲突，认为采用登记对抗主义更符合我国法律的基本原则和立法宗旨，更具有可行性和操作性。其次，认为应增设船舶抵押权人对抵押人和第三入侵害抵押船舶的权利救济规范。此外，还较为详细地分析了我国《海商法》第11条在船舶抵押权的设定条件及船舶抵押权实现途径方面的立法缺陷，建议在船舶抵押船舶抵押权法律问题研究权设定上，增加规定第三人也可作为抵押人，允许第三人以其自有船舶为债务人设定船舶抵押权；在船舶抵押权的实现方式上，增加规定可由当事人协商对抵押船舶进行折价、变卖，以便利船舶抵押权的实现，更有利保护船舶抵押权人的合法利益。
[Abstract]:Ship security interest includes ship mortgage, ship lien, ship lien and ship pledge. But there is no doubt that ship mortgage is the most important and widely used security right. Based on the characteristics of ship mortgage and the constitution of legal relationship, this paper, from the angle of the basic theory of civil and commercial law mortgage and the comparative study of maritime law, discusses the registration, order, infringement and remedy of ship mortgage right. This article is divided into six chapters in addition to the foreword and the conclusion, this paper tries to analyze and analyze the existing legal provisions of the mortgage right of ships in our country, and put forward its own opinions of amendment in addition to the foreword and the conclusion. The first chapter is an overview of ship mortgage. It analyzes the category of ship mortgage and its special attributes which are different from other security interests, and gives a general description of the establishment, object and effectiveness of ship mortgage. The second chapter is the registration of ship mortgage, through the comparison of the legislation of various countries, analyzes the different principles of publicity on the establishment of ship mortgage performance; This paper makes a legal analysis on the problems of the third party against the registration of ship mortgage: introduces the organization, procedure and content of the registration of ship mortgage in our country. The third chapter is about the infringement of ship mortgage and its remedy, discusses the three types, characteristics and constitutive requirements of the infringement of ship mortgage, and probes into the principles and methods of relief and damage compensation for mortgage infringement. The fourth chapter deals with the order rules of ship mortgage, and expounds the order rules of each mortgage when there are several ship mortgages on the same ship. It is considered that the validity of the registered ship mortgage is always superior to that of the unregistered ship mortgage, and that the order ascending doctrine should be adopted between the registered ship mortgage and the former ship mortgage after the elimination of the former mortgage, The ship mortgage in order of order can be ascended in turn; the pre-set ship mortgage is not only the priority to the value of mortgaged ship, but also the priority in the order of settlement. In addition, priority should be determined between unregistered ship mortgages in the order in which they are established. The fifth chapter analyzes the six situations that may lead to the elimination of ship mortgage. The sixth chapter makes some suggestions on perfecting the existing legal provisions of ship mortgage in our country. First of all, it is pointed out that there are legislative conflicts in the provisions of "General principles of Civil Law", "Maritime Law" and "Security Law" on the establishment of ship mortgage, and it is believed that the adoption of registration antagonism is more in line with the basic principles and legislative purposes of Chinese law. More feasible and operational. Secondly, the author thinks that the relief standard of the mortgagee's right to the mortgagor and the third invasion of the mortgagor should be added. In addition, the article 11 of China's Maritime Law is analyzed in detail on the conditions of the establishment of ship mortgage and the legislative defects in the way of realizing ship mortgage. It is suggested that the third party should be added as mortgagor in the legal research on the legal issue of mortgage right of ship mortgage. Allowing a third party to establish the mortgage of a ship with its own ship as the debtor; in the way of realizing the right of mortgage of a ship, an additional provision may be made that the mortgaged ship may be reduced or sold through consultation by the parties, so as to facilitate the realization of the right of mortgage of the ship, More conducive to the protection of the legitimate interests of the mortgagee of the ship.
【学位授予单位】：厦门大学
【学位级别】：硕士
【学位授予年份】：2001
【分类号】：D922.294

【引证文献】