船舶融资租赁相关法律问题研究
发布时间：2018-12-21 18:47
【摘要】： 船舶融资租赁是指由船舶出租人根据船舶承租人选定的船舶(或船舶的建造技术标准)和船舶卖方,分别与船舶承租人和船舶卖方签订船舶融资租赁合同和船舶买卖合同,向船舶卖方购买船舶,出租给船舶承租人使用,船舶承租人支付租金的交易。应实践的需要,船舶融资租赁形式多样,包括直接融资租赁、转租赁、回租赁、杠杆租赁等多种形式。基于船舶融资租赁立法和实践,笔者对船舶融资租赁的法律关系进行逐一解构,总结出其主体、客体、内容和流程上的特点及其相关法律问题。 船舶融资租赁的主体跨金融服务行业与航运业。针对该特点,笔者对国内和国际金融监管立法及其对船舶融资租赁的正负影响进行了分析,对航运业的高风险特点及如何控制这些给船舶融资租赁带来的负面影响作了研究。 船舶融资租赁的客体 船舶属于特殊动产。程序方面的特殊之处在于其权利状态须以相应登记方式取得对抗第三人的效力,该特点给船舶融资租赁场合下如何对船舶进行登记提出了难题。针对目前立法和实践中以光船租赁进行登记的做法,笔者提出了不同看法。实体方面的特殊之处在于船舶不菲的价值以及漫长的投资回收期,该特点使得投资者轻易不敢涉足船舶投融资领域。因此,各国的船舶投融资立法及相关政策对于吸引投资者眼球显得尤为关键。笔者对国内外船舶投融资相关立法和特殊政策进行了比较研究。 船舶融资租赁的内容 各主体之间的权利义务关系具有不对称性。这种特点导致船舶出租人的所有权受到诸多海商法上的特殊限制。笔者对其加以分析,并提出了解决方案。 船舶融资租赁的交易流程复杂,从船舶建造、船舶买卖、船舶贷款、船舶登记、船舶运营,一直到最后各方利润回收,所涉环节众多,且环环相扣。针对这种复杂的程序,国际上有一些被普遍采用的高级船舶融资租赁模式。笔者结合中国法律和市场的现状,研究了其中最为流行的德国KG船舶融资租赁模式的可借鉴性。 最后,笔者在相关法律问题的基础上,对我国的船舶融资租赁相关立法提出了自己的一点思考和建议,目的即在于促进国内船舶融资租赁业的发展与繁荣。
[Abstract]:Ship financing lease means that the shipowner, in accordance with the ship chosen by the charterer (or the technical standard for the construction of the ship) and the seller of the ship, shall sign the ship financing lease contract and the ship sale contract with the ship charterer and the ship seller, respectively. The purchase of a ship from a seller, the lease to the charterer, and the payment of rent by the charterer. According to the need of practice, the forms of ship finance lease are various, including direct finance lease, sublease, back lease, lever lease and so on. Based on the legislation and practice of ship finance lease, the author deconstructs the legal relationship of ship finance lease one by one, and summarizes the characteristics of its subject, object, content, process and related legal problems. The main body of ship finance lease cross financial service industry and shipping industry. In view of this, the author analyzes the domestic and international financial regulation legislation and its positive and negative effects on ship finance lease, and studies the high risk characteristics of shipping industry and how to control the negative effects on ship finance lease. The object of ship financing lease belongs to special movable property. The special aspect of procedure lies in the fact that the state of rights must be registered in a corresponding way to achieve the effectiveness against the third party. This feature puts forward a difficult problem on how to register a ship in the context of a ship's financial lease. Aiming at the practice of bareboat charter registration in legislation and practice at present, the author puts forward different views. The special aspect of the entity lies in the high value of the ship and the long payback period, which makes it easy for investors to venture into the field of ship investment and financing. Therefore, the ship investment and financing legislation and related policies are particularly critical to attracting investors' attention. The author has carried on the comparative research to the domestic and foreign ship investment and financing related legislation and the special policy. The content of ship financing lease has asymmetry in the relationship between rights and obligations. This characteristic causes the shipowner's ownership to be subjected to many special restrictions on maritime law. The author analyzes it and puts forward the solution. The transaction process of ship financing lease is complex, from ship construction, ship trading, ship loan, ship registration, ship operation, to the final profit recovery, there are many links involved, and they are linked together. In response to this complicated procedure, there are a number of advanced ship finance leasing models that are widely used internationally. Based on the current situation of Chinese law and market, the author studies the model of KG ship finance lease in Germany. Finally, on the basis of the relevant legal issues, the author puts forward some thoughts and suggestions on the legislation of ship financing lease in China, which aims at promoting the development and prosperity of the domestic ship financing lease industry.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2008
【分类号】：D922.294
本文编号：2389312
[Abstract]:Ship financing lease means that the shipowner, in accordance with the ship chosen by the charterer (or the technical standard for the construction of the ship) and the seller of the ship, shall sign the ship financing lease contract and the ship sale contract with the ship charterer and the ship seller, respectively. The purchase of a ship from a seller, the lease to the charterer, and the payment of rent by the charterer. According to the need of practice, the forms of ship finance lease are various, including direct finance lease, sublease, back lease, lever lease and so on. Based on the legislation and practice of ship finance lease, the author deconstructs the legal relationship of ship finance lease one by one, and summarizes the characteristics of its subject, object, content, process and related legal problems. The main body of ship finance lease cross financial service industry and shipping industry. In view of this, the author analyzes the domestic and international financial regulation legislation and its positive and negative effects on ship finance lease, and studies the high risk characteristics of shipping industry and how to control the negative effects on ship finance lease. The object of ship financing lease belongs to special movable property. The special aspect of procedure lies in the fact that the state of rights must be registered in a corresponding way to achieve the effectiveness against the third party. This feature puts forward a difficult problem on how to register a ship in the context of a ship's financial lease. Aiming at the practice of bareboat charter registration in legislation and practice at present, the author puts forward different views. The special aspect of the entity lies in the high value of the ship and the long payback period, which makes it easy for investors to venture into the field of ship investment and financing. Therefore, the ship investment and financing legislation and related policies are particularly critical to attracting investors' attention. The author has carried on the comparative research to the domestic and foreign ship investment and financing related legislation and the special policy. The content of ship financing lease has asymmetry in the relationship between rights and obligations. This characteristic causes the shipowner's ownership to be subjected to many special restrictions on maritime law. The author analyzes it and puts forward the solution. The transaction process of ship financing lease is complex, from ship construction, ship trading, ship loan, ship registration, ship operation, to the final profit recovery, there are many links involved, and they are linked together. In response to this complicated procedure, there are a number of advanced ship finance leasing models that are widely used internationally. Based on the current situation of Chinese law and market, the author studies the model of KG ship finance lease in Germany. Finally, on the basis of the relevant legal issues, the author puts forward some thoughts and suggestions on the legislation of ship financing lease in China, which aims at promoting the development and prosperity of the domestic ship financing lease industry.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2008
【分类号】：D922.294
【引证文献】
相关博士学位论文 前1条
1 杨健;我国船舶融资租赁法律问题研究[D];大连海事大学;2010年
相关硕士学位论文 前4条
1 杜青芸;船舶融资租赁风险防范法律问题研究[D];大连海事大学;2011年
2 陈宸;船公司对船舶登记国的选择问题研究[D];上海交通大学;2011年
3 汪慧;在我国发展船舶融资租赁业的税收法律瓶颈与解决方案[D];上海交通大学;2011年
4 唐维维;十五年来我国船舶融资租赁海事审判状况研究[D];复旦大学;2012年
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