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Contents
Introduction.
Chapter 1. The
concept of sea ships hypothec.
§ 1. The Legislative
base of sea ship hypothec.
§ 2. The concept and
the base of origin.
Chapter 2. Sea
ships hypothec contract.
§ 1. The Subject of
sea ships hypothec.
§ 2. Conclusion of
hypothec contract.
§ 3. The Legal
framework of legal hypothec.
§ 4. Termination of
hypothec.
Chapter 3. The
State registration of sea ships hypothec.
§ 1. Notarial
verification and state registration of sea ships hypothec.
Introduction
Hold in Russia market
reforms required the significant changes in Civil Legislation. Legal
institutes that had not attracted attention for a long time obtained
the new feature.
Among them special
place is taken by mortgage and hypothec, as a kind of mortgage. In
particular, it is the sea ships (hereinafter referred to as “ships”)
hypothec as a method of provision of obligations fulfillment.
The subject of
present work is certain problems of sea ships hypothec in accordance
with Russian legislation.
The actuality of this
legal institute is incontestable. In present-day conditions a
necessity in credit resources is very high and thus reliable legal
means for provision of its return are required. Not only creditors
are interested in it, but also potential borrowers, since otherwise
the latter lose the possibility of real attraction of funds into the
scope of its activity.
It is known that
maintenance and purchase of ships require significant funds.
In the process of the
economic activity ship-owners have to involve additional funds as
loans, thus ships themselves serve as means of liability securing of
ship-owners on the debt recovery.
Economic practice,
especially in scope of bank lending, testifies the active use of
mortgage. At the same time there is an obvious necessity in
perfection of legal regulation of mortgage relations as a result of
presence gaps, contradictions and other lacks of existing
legislation.
In the view of law,
attraction of borrowed funds by Russian ship-owners is possible, in
particular, in presence of well working law mechanism of ships
hypothec.
The perfection of
legislation is impossible without complex approach to comprehension
of most important theoretical problems, comparison legal forms with
present life. During last 10 years many works, devoted to the study
of charging lien (hypothec law), had appeared. However, the
problems, concerned with ascertainment of specificity of ships
hypothec, did not get a proper coverage in legal literature.
Chapter 1. The concept of sea ships
hypothec
§ 1. Legislative base of ships hypothec
Mortgage as means of
liability securing is one of legal institute most regulated by Civil
code. 25 articles of the Code are devoted to the legal
relationships, related to the mortgage. There is Federal mortgage
law dated 29 May 1992, and on 16 July 1998 Federal hypothec law
entered into legal force that regulate the legal relations on the
mortgage of immovable property.
The importance of
Federal hypothec law in conditions of market economy is caused by
the reason that such mortgage is one of the most reliable
instruments, which secure the fulfillment of liabilities by all
members of civil circulation. First of all, under the mortgage
specific immovable property is allotted and its cost exceeds the
amount of debt, which guarantees a discharge of debt after selling
the property at breach of obligation by debtor. In second place,
parties know it at the moment of liability accrual. At third, a
creditor-pawnee has a legal right go get satisfaction of his money
claims before debtor primary prior to other creditors of pawner out
of proceeds of pledged property. At last, besides considerable cost,
such property acts the important part in pawner’s life and he will
try not to lose it.
Federal hypothec law
regulates hypothec of different kinds of property with consideration
of its specificity.
Legal regulation of
ships hypothec in accordance with Russian legislation is exercised
by Merchant shipping code, Civil code, Mortgage law and Hypothec
law.
Common mortgage rules
contained in Civil code are applied to the hypothec of immovable
property, if Hypothec law does not state other rules.
Considering hypothec
of ships. Sea ships itself are very specific object. Therefore,
relations, connected to sea ships, require not just common
regulation by indicated above acts of legislation.
Detailed regulation
of sea ships hypothec is carried out exactly in Merchant shipping
code.
Merchant shipping
code, which was acting until 1999, did not regulate and even did not
state the possibility of sea ships hypothec. It was explained by the
prevalent property form in whole and by the position of Soviet
legislation, which forbidden the charge on sea ships without consent
of USSR Council of Ministers.
In Merchant shipping
code, which is in force now, a whole chapter is devoted to ships
hypothec. Station 22 of the Code, devoted to the legal regulation of
relations, concerned with sea mortgage on ship and ship hypothec,
are based on principles of International convention of sea mortgages
and hypothecs of 1993. Russian Federation has expressed its consent
for joining to the indicated International convention on March 4th,
1999 on the ground of Federal law # 184-FZ dated December 17th,
1998.
All these legislative
acts regulate such basic stations, concerning the mortgage and
hypothec, as concept and base of mortgage origin, mortgage subject,
concept of powner, contract and requirements made for contract,
basic rights and liabilities of parties, charge on pledged property
and other issues.
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