船舶融资租赁下出租人的权责研究

发布时间：2018-07-01 19:15

本文选题：船舶融资租赁 + 出租人　；参考：《中国海洋大学》2008年硕士论文

【摘要】： 融资租赁一词是从英文financial leasing翻译而来,是现代市场经济条件下的出现的一种兼具融资与融物双重职能的新型交易。融资租赁被世界上的大多数发达国家和一些发展中国家广泛采用。尤其是新兴工业国家开始制定政策,以扶植和规范以融资租赁方式对航运市场的投资,对航运市场的发展、壮大起到了积极的推动作用。如日本和韩国,相继出台了一系列法律、政策,如规范租赁公司运营、制定对承租人的税收优惠政策以及提供政策性担保等。由于融资租赁本身历史不长,人们对融资租赁的认识不深,尽管我国《合同法》中对“融资租赁合同”以专章规定,但对融资租赁出租人权益的保护立法还很是不够,同时,我国法学界对融资租赁出租人权利保护问题的研究与探讨亦不充分,这些都严重制约了融资租赁业在我国的发展。相对于一般融资租赁而言,船舶融资租赁在中国更是处于一种起步阶段。基本的船舶融资租赁关系涉及到三方当事人:出租人(融资人、船舶所有人)、承租人、船舶出卖人(可能是船厂,也可能是原来的船舶所有人)。出租人与出卖人之间为买卖合同关系,出租人与承租人之间为融资租赁合同关系。出租人作为船舶的买受人,按照承租人的选择和要求,与作为供应商卖方或造船厂签订供货协议,即船舶买卖合同或船舶建造合同,出租人获得船舶所有权,作为出租方将船舶租给承租人使用、收益,自己收取租金。其中涉及两类合同,即船舶买卖合同/船舶建造合同与船舶租赁合同。出租人在船舶融资租赁中的身份不同,所享有的权利义务就不同,由此可能产生的风险及规避方法也有很大差别。鉴于此,本文试图在分析船舶融资租赁中出租人权利与责任的基础上,根据海商法、合同法、破产法及相关法学原理,并结合《美国统一商法典》等立法例以及《国际融资租赁公约》等国际惯例,针对出租人的不同的身份对其享有的权利和面临的责任风险问题分别探讨,以期对我国相关立法有所参考。本文分四部分,第一部分通过介绍各国对融资租赁的定义,界定融资租赁和船舶融资租赁的概念及其特征,分析船舶融资租赁合同和船舶光船租赁及船舶租购合同的区别。第二部分阐述作为船舶所有人的出租人所享有的一般权利,并着重分析出租人享有的船舶所有权和船舶租赁合同下出租人的权利。第三部分是本文的重点分析出租人作为船舶融资租赁中两个合同的当事人所面临的风险,包括在船舶买卖合同中的风险以及在船舶租赁合同下作为船舶所有权人会面临的一些在其他设备融资租赁中不其有的风险,如附着于船舶之上的优先权,修船人因承租人拒付修理费用而对船舶行使的留置权,船舶产生油污损害的赔偿责任和船舶被扣押时所产生的风险等。第四部分根据船舶融资租赁中出租人享有的权利和面临的责任与风险,结合船舶融资租赁本身的特性,提出完善船舶融资租赁制度和海商法相关制度的建议。
[Abstract]:The term of financing lease is translated from English financial leasing. It is a new type of transaction which has dual functions of financing and melting under the condition of modern market economy. Financing lease is widely adopted by most developed countries and developing countries in the world. Especially, the new industrial countries have begun to formulate policies to support them. And the regulation of investment in the shipping market by means of financing lease has played an active role in promoting the development and expansion of the shipping market. For example, Japan and South Korea have issued a series of laws, policies, such as standardizing the operation of the leasing company, formulating the preferential tax policy on the lessee and providing policy guarantee. Although the history is not long, people have not a deep understanding of the financing lease. Although the "contract law" in China has a special chapter on the "financing lease contract", the protection legislation of the rights and interests of the leasing lessor is not enough. At the same time, the research and Discussion on the protection of the rights of the leasing lessor in the legal circles of our country are not sufficient, which are seriously restricted. The development of financial leasing industry in China, compared with the general financial leasing, ship financing lease is at an initial stage in China.
The basic ship financing lease relates to three parties: the lessor (the financier, the ship owner), the lessee, the shipper (may be the shipyard, or the original owner). The lessor and the seller are the contractual relationship between the seller and the seller. The lessor and the lessee are the contractual relationship between the lease and the lease. The lessor is the ship. The buyer, in accordance with the choice and requirements of the lessee, signed the supply agreement with the supplier seller or the shipyard, that is, the ship sale contract or the ship construction contract, the lessor obtains the ownership of the ship, as the lessor rents the ship to the lessee for use, proceeds, and receives the rent. It involves two types of contracts, that is, the contract of sale of the ship. A ship construction contract and a ship lease contract. The identity of the lessor in the ship financing lease is different, the rights and obligations of the shipowner are different, and the possible risks and evasion methods are also very different. In view of this, this article tries to analyze the benefits and responsibilities of the renting of human rights in the financial leasing of ships, according to the maritime law, the contract law, The principles of bankruptcy law and related jurisprudence, combined with other international practices such as the United States Uniform Commercial Code and the international financial lease convention, are used to discuss the rights of the lessor and the risk of responsibility for the different identities of the lessor, with a view to reference to the relevant legislation in China.
This article is divided into four parts. The first part, by introducing the definition of financial lease, defines the concept and characteristics of financing lease and ship financing lease, and analyzes the difference between ship financing lease contract and ship renting and ship rental contract. The second part expounds the general rights of the shipowner as the owner of the ship, and Reanalysis the ownership of the shipowner and the rights of the lessor under the contract of the ship lease. The third part is the focus of this article to analyze the risks that the lessor is faced with as a party to the two contract in the financial lease of the ship, including the risks in the contract of sale of the ship and the meeting of the owner of the ship under the ship lease contract. Some of the risks that are not available in other equipment financing leases, such as the priority attached to the ship, the shipowner's lien on the ship due to the tenant's refusal to pay the repair cost, the liability for the damage to the oil pollution caused by the ship and the risk of the ship being detained. The fourth part is based on the lessor of the ship's financial lease. The rights and responsibilities and risks faced, and the characteristics of the ship financing lease itself, put forward suggestions to improve the system of ship financing lease and maritime law.
【学位授予单位】：中国海洋大学
【学位级别】：硕士
【学位授予年份】：2008
【分类号】：D996;D913

【引证文献】