선박저당권에 관한 법적 연구

Abstract

The legal systems of ship-security which obtain loans in the transaction of shipping business by the ship security are maritime lien, ship mortgage, ship pledge. In these days, maritime lien and ship mortgage constructed the two main systems of ship-security. But this thesis discusses only the legal system of ship mortgage. Ship mortgage is created by a written contract between a mortgager and a mortgagee. And it must be registered with the local court or registry office which have jurisdiction over the port of registry. The Commercial Code stipulated only four articles(Art. 871-874) relating to ship mortgage. Accordingly ship mortgage is subjected to the same legal provisions as real estate mortgage under the Civil Code. But ship mortgage is essential to shipping finance, therefore, the Commercial Code should provide ship mortgage with protection sufficient to insure the viability of this important financing device. In this writer’s opinion, the existing provisions of ship mortgage clearly show us defective legislation. So, To solve this problem, This writer suggests the necessity of legislation of the special law(tentatively named "ship mortgage law") and the amendment Commercial Code. While maritime lien has no registry to be attached to a specific ship, but ship mortgage must be registered with the local court or registry office which have jurisdiction over the port of registry to take the effect against third parties. Nevertheless, maritime lien as s a particular security right has priority over ship mortgage. It causes damage to ship mortgage, therefore should be reduce the range of the maritime lien. The aim of this thesis is to suggest the legislation of the ship mortgage as special law and the amendment Commercial Code.