论船舶融资租赁出租人特殊风险之防范——以对租赁物的强制措施为视角

On the Prevention of the Special Risks for the Leasers in Ship Financial Leasing——From the Angle of the Coercive Measures over the Leasehold

海商法关于船舶优先权、船舶留置权的规定使船舶融资租赁人面临由于船舶特有法律制度带来的特殊风险,为防范此类风险,应该从对租赁物——船舶采取的一般民事保全措施或海事请求强制措施的角度入手,对于采用何种措施,实践界和理论界并无定论,争论比较大的法律问题便是"当事人是否可以申请对自己名下的船舶采用强制措施",本文指出:船舶融资租赁出租人可将租赁物作为财产保全请求或者海事保全请求的担保财产请求法院扣押相关证书,防止租赁物被拍卖变更产权的风险。

The provisions of the Maritime Law on marmme liens and possessory lien bring special risks to ship financial leasers due to the special legal system for ships. To avoid such risks, we should start from the general civil property preservation measures or maritime claim coercive measures adopted for ships as the leasehold. As for the measures to be adopted, there is no final conclusion in both practical and theoretical field. The legal issue involving major argument lies in whether the party concerned is entitled to apply for coercive measures taken over ships with the ownership of itself. The paper suggests that the ship financial leasers should request the court to detain related certificates with the leasehold as the guarantee property for property preservation claims or maritime preservation claims, in order to prevent the risk of leasehold being sold at auction and changed in property