Research On The Protection Of Lessors’ Rights When Ship Financial Leasing Lessees Go Bankrupt

As far as the legal system of our country is concerned,when the ship financial leasing lessee goes bankrupt,the ship financial charter contract which is in the process of performance belongs to the contract unperformed on both sides and needs to be restricted by the bankruptcy administrator’s right of selective performance.If the bankruptcy administrator chooses to continue to perform the ship financial charter contract,the lessor can declare the creditor’s right of the remaining hire to the administrator,that is,exercises the claim for hire;if the bankruptcy administrator chooses to terminate the ship financial charter contract,the lessor can take back the ship,that is,exercises the bankruptcy recall right.This thesis constructs the existing legal system to protect the rights of the lessor from two aspects: the legal protection of the lessor’s claim for hire and the bankruptcy recall right when the ship financial lessee goes bankrupt.And put forward corresponding suggestions for improving the system.In addition to the introduction and conclusion,there are four chapters in this thesis.The first chapter introduces the two rights of the lessor when the ship financial lessee goes bankrupt: the claim for hire and the bankruptcy recall right.First of all,from the point of view of whether the ship financial leasing contract belongs to the “executory contract” in Article 18 of the Law of the PRC on Enterprise Bankruptcy,analyzes the influence of the bankruptcy administrator’s right of selective performance on the lessor’s rights.Secondly,it introduces the provisions of the existing legal system on two kinds of rights.Finally,it discusses the difficulties faced by the lessor in exercising the claim for hire and the bankruptcy recall right.The second chapter introduces the nature of ship financial lease and lessor’s hire claim under different legislative modes of secured transaction.At the same time,combined with the promulgation and implementation of the Civil Code and relevant judicial interpretations,this thesis discusses Chinese law’s attitude to the nature of ship financial leasing and lessor’s claim for hire.On this basis,it puts forward the idea of determining the ship financial lessor’s hire as a secured creditor in bankruptcy proceedings.In addition,it finds out the procedure for the lessor to exercise the claim for hire and the order of compensation with floating mortgage,possessory lien,maritime lien and ship mortgage on the same vessel.After making it clear that the bankruptcy recall right of the lessor still exists,the third chapter makes research on the exercise of the bankruptcy recall right.First of all,it introduces the ways to exercise the bankruptcy recall right.Secondly,it clarifies the liquidation obligations of the ship financial lessor after the ship is reclaimed.In addition,to resolve the conflict among the ship financial lessor’s bankruptcy recall right,the maritime lien and the possessory lien,put forward the corresponding solutions for the lessor.Finally,according to the different situations of the delay in the exercise of the bankruptcy recall right,the distribution of relevant responsibilities is determined.The fourth chapter puts forward corresponding suggestions on the lessor ’s hire claim protection system and the lessor’s bankruptcy recall right protection system.To perfect the system of claim for hire,this thesis puts forward some suggestions,such as clarifying the legal basis and relevant procedural provisions of the exemption right of the lessor,and establishing the link between the registration of ship financial lease and the unified filing system of security interests over movables and rights.To perfect the system of the bankruptcy recall right,it puts forward some suggestions,such as simplifying the procedure of exercising the bankruptcy recall right by enforcement certificates,clarifying the liquidation rules after the lessor take back the lease item,adding a margin clause for real rights for security in ships and improving the application of ship value evaluation in the declaration of bankruptcy claims.