| By referring to the mature construction mode of chattel guarantee system in comparative law,the Civil Code of our country includes finance lease and ownership retention transaction into chattel guarantee system,and adopts the legislative mode of combining formalism and functionalism.It establishes a security real right system composed of mortgage,pledge and lien in the form of legal real right,and brings the non-typical security transactions such as ownership retention,finance lease and factoring into the chattel security transaction system from the perspective of functionalism,mainly to eliminate the implicit guarantee.All transactions with security functions are integrated and adjusted through movables security rules,so that all transactions with security functions are made.However,this legislative mode will cause some conflicts in the interpretation and judicial practice of ship finance leasing and ship ownership retention.In ship finance leasing,it is mainly manifested as the conflict of exercise of rescinding right of shipowner: because there may be maritime lien and other security right on the subject matter,and according to the principle of "can be seized and sold",it is often difficult for shipowner to get back the subject matter,so the functional legislation model is more operable.Restrictions on the application of the price super priority: the form of ship finance leasing conforms to the structure of the price gold super priority.However,as Article 416 of the Civil Code does not set the applicable provisions,it can only be applied by analogy,which will cause different interpretations.At the same time,ship sale and leaseback cannot apply this rule,and the application of functionalism will solve the above problems by unifying the guarantee.Similarly,when the charterer goes bankrupt,the right of recovery is more difficult to exercise than the right of exclusion,which is not in line with economic benefits.In the retention of ship ownership,it is mainly manifested as the obstacles to exercise the right to take back: the Civil Code has generalized liquidation through Article 642 with reference to the provisions of the application of the security real right procedure,so the right to take back is not practical.There is a conflict between the application of the "normal business buyer rule" and the identification of the "bona fide" standard;And the mixed legislative model of the Civil Code will cause conflicts in the priority relationship of rights when competing for depositing.Therefore,for the major institutional reform of guarantee functionalization of finance lease and ownership retention transactions,it is necessary to accurately characterize the disputes and conflicts,and apply functionalist legislation model uniformly to properly link up and resolve the conflicts.Therefore,the article 388 of the Civil Code should be based on the principle of equality and freedom,and the functional legislation mode should be applied uniformly.The non-typical guarantee of our country should be incorporated into the unified chattel guarantee system. |
