Conflict Laws Of Ships Security Interest And Their Solution

Security Interest is a crucial component of Real Right in the Civil Law. Due to the accommodation of money and other development in the 20th century, Security Interest plays a more important role than before. Three international treaties have been brought out in the field of maritime law on the issue of ships security interest, which demonstrates its practical value. Being an advanced law Maritime Code of the People's Republic of China comes into being with times, however, there are still some flaws according to the development of society and the test of practice. The aim of this paper is to get some feasible suggestions for the perfection of our Maritime Law in legislative theoretical foundation through the comparison of some countries'maritime laws as well as the international treaties.This dissertation is divided into five chapters: the first chapter is general introduction; the second to the fourth chapters discuss items respectively; the fifth is a synthetical summary.The first chapter introduces the meaning of Conflict of Laws and the reasons for its existence at the beginning. Next Conflicts in the field of Ships Security Interest are introduced with their formation causes and regulating methods in details. This part emphasizes three rights, namely, Mortgage of Ships, Priority of Ships and Possessory Lien of Ships, with their respective characteristics of Conflicts. The full understanding of these conflicts enables us to analyze advantages and disadvantages of law-applicable theories as well as propose the solutions.Mortgage of Ships is studied in the second chapter. In considering that economy and laws should be geared to international standards, the Maritime Law sets Mortgage on ships in accordance with real estate, and therefore special regulations must be made for the adjusting of specialities of Mortgage. Next makes some explanations of the definition of the Mortgage in the Maritime Law. Through the detailed study of Mortgage's characteristics we get a better understanding of its content. Through the exposition of its Conflicts, we know that there is still much diversity in the regulations of different countries'Mortgage of Ships, which is in need of proper methods and solution. At present the Conflicts of Mortgage of Ships mainly concentrate on different natures and contents regulated by different law systems. In French law system it generally equals the mortgage of chattel real; in German law system it is equal to a mixture of lien and hypothec; in Anglo-American law system it makes possession a premise. Besides every county as well has her own cognition and regulation of register items and efficacy of ships mortgage, payee sequence, objects and so on. All these factors demonstrate that it is of great difficulties to get a unification on the subject of Mortgage of Ships. This chapter focuses on the suggested solutions of Conflicts of Mortgage, pointing out more reasonable principles through commenting advantages and disadvantages of various law- applicable principles, and offers proposal for the amendment of relevant portion in the Maritime Law.The Priority of Ships in the third chapter does not belong to Chinese Property Law system, and therefore it is a particular system regulated by the Maritime Law, which aroused most controversies. The Priority of Ships is defined as a privilege endowing to some given maritime creditors by the Maritime Law. The brief introduction of basic theories of the Priority is not my focus, while I concentrate on the Conflicts of the Priority of Ships and their paths to solution. Unified law-conflict solution principles can apply to the conflicts between nature of Priority, target range, guaranty items, transfer and subrogation, which is of great importance in balancing the conflicts of interest between the Priorities of different countries. For our country the solutions to applicability of Conflicts of Ships Priority should be divided into different aspects, and at the end of this chapter some suggestions have been proposed for the amendment of Chinese Maritime Law.The fourth chapter gives general introduction and brief commentary on Possessory Lien of Ships with fundamental content. Different countries diverse in the regulations of the nature of Possessory Lien, formation conditions, implement ways and so on. It is necessary to stipulate Possessory Lien of Ships expressly in our Maritime Law for the effective protection of the interest of Chinese shipbuilders and repairers.The fifth chapter expounds the relationship among Security Interest of Ships synthetically, penetrating their similarities as well as their prominent diversities in nature, property of creditor's rights, transferability and formation conditions. Finally it comes to the Conflicts of Ships Security Interest and their solution. Conflicts between different countries highlight the payee sequence, and therefore different countries should make an effort to unify the jurisdiction clauses between Ships Security Interests according to lex situs as an international unified conflict-solution principle. In order to solve conflicts of applicable laws basing on the above foundation, unified entity norms should be gradually set up in the process of integrating national law and international law to converge the legislations of Ships Security Interest in different countries, which gives protection of the interest of every party fundamentally.The legislation of Chinese Maritime Law is in line with international development trend, and especially the legislation of Ships Security Interest exhibits the advanced international experience of legislation of Security Interest. The study of Ships Security Interest in this dissertation aims at indicating some legislative flaws due to the development of society and time of practice, and with my humble effort making some valuable suggestions for the legislation and amendment of our Maritime Law.