Research On The Ownership Of The Lessor In Ship Financial Leasing

The Civil Code adopts the legislative mode of combining formalism and functionalism,and through the "other contracts that have the function of security",includes the financial lease transactions into the scope of transactions of security for movable property,so that the ownership of the lessor under the financial lease of a ship is functionally turned into the real right for security.Under the circumstance that the lessor’s ownership and other rights compete,the priority order among them is determined in accordance with the time sequence of obtaining effectiveness of confrontation by registration,but such priority does not take precedence over the maritime lien and possessory lien.However,when facing claims arising from oil pollution and collision,the nature of real right for security in the lessor’s ownership cannot be demonstrated,and the lessor still needs to bear the liability for compensation as the nominal owner.This article is composed of the following four parts:Chapter 1 expounds the legal status of the lessor under the financing lease of ship,makes a comparative study on the ownership of the lessor under the financing lease of ship,the ownership of the general buyer of ship and the ownership of the lessor under bareboat charter respectively,and shows the particularity of the ownership of the lessor under the financing lease of ship by comparison.Chapter 2 expounds the legal nature of the lessor’s ownership under ship financial lease,and discusses that the lessor’s ownership has different legal natures under ship financial lease under different legislative modes.Based on the revision of financial lease under the Civil Code,it is demonstrated that the legislative mode of combining formalism and functionalism is adopted for chattel security transactions in China,and the characteristics of ownership of ship financial lease as a kind of atypical guarantee are discussed from the perspective of ownership in atypical guarantee system,which confirms the application of transferring right guarantee in China,providing a theoretical foundation for the functionalization of lessor’s ownership under ship financial lease as security interests.Chapter 3 expounds the exercise of the lessor’s ownership and the sequence of its realization when the lessor’s functional ownership competes with the maritime lien and possessory lien under ship under ship financial lease;meanwhile,it discusses the irrationality that the lessor,as the nominal owner of the ship,should bear compensation liabilities when the claims arising from oil pollution and collision occur.Chapter 4 is the perfection suggestions on the guaranty of the lessor’s ownership under ship financial lease under the Civil Code.Based on the analysis of the Maritime Code and relevant laws and regulations in China,it is suggested to add a chapter of "s hip financial lease" into the Maritime Code as there is no specific provision on ship financial lease in the existing laws and regulations in China.Meanwhile,for the purpose of harmonizing the provisions of the Civil Code,it is suggested to establish a registration system for ship financial lease and introduce a third-party institution.