“卖契”概念应引入我国船舶登记法律

The Necessity to Introduce the Concept of“Bill of Sale” into China's Ship Registry Law

国际船舶买卖合同普遍将"卖契"列为船舶交接时卖方必须交付的文件之一,世界上多数国家的船舶登记法律也将卖契作为船舶所有权的证明文件。然而中国《船舶登记条例》却与国际通行做法相背离:要求买受人提供船舶买卖"合同"以证明其所有权的取得。卖契与合同在含义与功能方面存在着根本的不同。国内关于船舶登记法律制度的完善存在着登记机关应承担"实质审查"还是"形式审查"义务和是否有必要引入"预告登记"或"异议登记"制度的争论,而该争论的产生源于对"卖契"概念的误解或忽视。考察国际船舶买卖惯例和船舶登记程序立法关于卖契法律地位的客观发展趋势和我国契据制度的本土传统,我国船舶登记程序立法引入卖契概念不仅可行,而且是必经之路。

In the international ship sale and purchase, it has been an international practice that the buyers in the MOA require the sellers to provide the bill of sale to prove the transference of the ownership of the ships. At the same time, the regulations or laws in respect of ship registration procedures of most countries treat the bill of sale as one of the most important documents which could prove the ownership of the buyers. However, according to Ordinance of Ship Registration of PRC, the buyers are requested to produce contract of sale and purchase of ship, other than the bill of sale, in order to complete the procedure of registry of vessel, which is very different from international practice. This paper observes the meaning as well as the function of bill of sale, and analyses the difference between the bill of sale and those contracts required in the Ordinance of Ship Registration of PRC, and finally comes to the conclusion that it is necessary and feasible to introduce the con- cept of bill of sale into China＇ s ship registry law.