중국법상 건조 중 선박의 법률관계에 관한 연구 - 조선소의 파산의 경우를 중심으로 -

Abstract

Since 2009 the new orders of the global shipbuilding industry has decreased and the price of the new ships also reduced. Although seven years have passed, shipbuilding industry still stayed in a downturn. In recent several years, many shipbuilding companies have become insolvent, not only those small and medium-sized shipbuilding companies, but also those large-sized. The insolvency of the shipbuilding company will affect the ownership of the ships. The nature of shipbuilding contract will result in different ownership, and different ownership will lead to the distribution of rights to different parts. The nature of shipbuilding contract varies differently in each country, in most civil law countries, shipbuilding contract is treated as the contract for work and material, such as China. In this theory shipbuilding company only has the right to lien the ship, and the ownership of the company is owned by the shipping company. The shipbuilding contract can be considered as a mixed contract, because the contract of sale or contract for work and material will lead to unfair phenomenon. The construction of the ship is a huge project, and shipbuilding contract is very complex. Obviously it is not very suitable to define the nature of the contract only in one way. Therefore in order to maximize the interests of both sides and guarantee the fair environment, we can use one or multiple theories in one time. According to the different nature of the shipbuilding contract, the ownership of the ships before construction differs differently. As to achieving a relatively fair condition and maximizing the interests, we should analysis the situations according to the environment. At the same time, due to the flexibility and freedom of contract, both sides of the shipbuilding contract can negotiate with each other. Under the contract for work and material, the ownership of the ship under construction is owned by the shipping company since the contract was signed. In this circumstance, the protection of the shipbuilding company is not enough. As the process of ship construction is very long, cost time, invest more and high risk, both the shipbuilding company and shipping company can take the ships under construction for the mortgage to the banks. No matter the sales contract or the contract for work and material, the banks only have the priority to distribute the property, rather than dispose the ships under construction. The jurisdiction of the shipbuilding company insolvency, when applying for the insolvency, the parties should sue to the civil courts because there do not need maritime knowledge. And the applicable law is the Chinese Insolvency Law, after the declaring of insolvency, this stage needs a variety of professional skills and knowledge, the parties should sue to the maritime court. And the applicable law is Maritime Law.