The Legal Structure Of Ship Sale And Leaseback

Ship sale and leaseback,as a new financing method and guarantee transaction in shipping economic activities,is in the ascendant in the financing activities of shipping enterprises.Article 745 of the Civil Code stipulates that "the lessor has ownership of the leased property" is the transaction basis that runs through ship financing leases.On the one hand,the rules of the Civil Code regarding financial leasing are based on the direct leasing model,and whether its rule system can be applied to the sale and leaseback model essentially involves the issue of determining the legal nature of sale and leaseback.On the other hand,the view that "sale and leaseback is a subordinate concept of financial leasing" once held a dominant position in judicial practice.A large number of sale and leaseback transactions were deemed invalid by judicial judgments because they did not conform to the characteristics of financial leasing,and only a general lending relationship was established between the parties.This also demonstrates doubts about the legal nature of sale and leaseback in judicial practice.In addition,there is a coexistence of functional and non functional clauses in the regulations on financial leasing in the Civil Code,which does not highlight its guarantee characteristics.In view of this,it is necessary to re-examine the legal nature of ship sale and leaseback,and clarify the legal structure under its transaction arrangements.Starting from the qualitative analysis of ship sale and leaseback,this paper explores the legal structure of ship sale and leaseback transactions under the premise of defining ship sale and leaseback as transfer guarantee.On the basic issue of ship sale and leaseback: Although ship sale and leaseback are often concluded in the form of ship financing lease contracts in practice,there are significant differences between the two due to the sources of leased goods,the realization of financing needs,and the interests of both parties in the transaction.ship sale and leaseback should not be a subordinate concept of ship financing lease.The parallel establishment of dual contracts for ship sale and leaseback,as well as the content of the system of ownership transfer guarantee,makes the essence of the guarantee transaction similar to the transfer guarantee system in terms of transaction structure,publicity method,and transaction arrangement.Therefore,ship sale and leaseback should be defined as a transfer guarantee transaction with the ownership of the ship as the subject matter.Under the premise of defining ship sale and leaseback as a transfer guarantee transaction,the legality of ship sale and leaseback transactions can be proven from the relationship between ship sale and leaseback and the legal principle of property rights,the prohibition of liquid contracts,and the fraudulent representation of collusion.On the theoretical basis of the legal structure of ship sale and leaseback: under the premise of defining ship sale and leaseback as transfer guarantee,this paper provides a theoretical explanation of ship sale and leaseback transactions through the dual interpretation path of ownership composition and security right composition.From the perspective of legal doctrinal science,this paper explores the partial inheritance of the formalism formal guarantee view of the Civil Code to the Functionalism substantive guarantee view,and demonstrates that the atypical guarantee transactions under the Civil Code should adopt the ownership structure.Under the ownership structure,the "guarantee function" of ship sale and leaseback should be interpreted in a limited way.The limit of Functionalism in ship sale and leaseback should return to the position of legal doctrine and respect the civil law concept of autonomy of private law.On the internal effect of the legal structure of ship sale and leaseback: the internal effect of the legal structure of ship sale and leaseback is reflected in the relationship between the rights and obligations of the parties to the ship sale and leaseback transaction,which is subject to the freedom of contract and the economic purpose of the parties’ transaction.In the process of ship sale and leaseback,both parties to the transaction can freely agree through a contract on the scope of the secured creditor’s rights,the utilization relationship of the target ship,and the realization method of the ownership of the lessor of the ship’s sale and leaseback.This agreement is valid unless it violates the principles of public order,good faith,or mandatory law.When there is no agreement or unclear agreement between the parties,the rights and obligations of both parties shall be explained based on the purpose of the ship’s sale and leaseback transaction.Based on the essence of the ship’s sale and leaseback guarantee transaction,the lessor needs to fulfill the liquidation obligation in order to realize the security interest.The lessee has the right to redemption upon the completion of the rental debt.The lessor’s liquidation obligation and the lessee’s redemption right are the core contents of the internal effectiveness of the ship’s sale and leaseback.On the issue of external effectiveness in the legal structure of ship sale and leaseback: The external effectiveness of ship sale and leaseback is specifically reflected in the external relations of the parties involved in ship sale and leaseback,namely the relationship between the parties involved in ship sale and leaseback and general third parties,as well as the relationship between the parties involved in ship sale and leaseback and their respective creditors.In terms of the effectiveness of ship sale and leaseback for general third parties,it is necessary to distinguish the different situations where the lessee disposes of the ship,the lessor disposes of the ship,and the general person infringes on the ship.In terms of the effectiveness of the ship’s sale and leaseback on the lessee’s third party creditors,in the event of the lessee’s bankruptcy,the lessor has the right to retrieve the target ship,and in the event of the lessee’s third party’s compulsory execution of the ship,the lessor has the right to file a lawsuit against the execution.In terms of the effectiveness of the ship’s sale and leaseback on the lessor’s third creditor,in the event of the lessor’s bankruptcy,the lessee has the right to extinguish the target ship,and in the event of the lessor’s third creditor enforcing the ship,if the lessee fails to exercise the extinguishment right,they have no right to file an objection.