论文部分内容阅读
船舶优先权是海商法特有的一个重要的法律概念和制度,但对于其法律性质国内外一直存在着激烈的争论。有学者认为其属程序性权利,也有学者认为其属实体性权利;在持实体性权利观点的学者中,有人认为其属于物权范畴,又有人认为其属债权范畴。本文认为船舶优先权既有物权特征又有债权特征,其既不应划归物权也不应划归债权,而应属与物权和债权并立的第三种权利,即担保权。同时,与其他种类的担保权相比,它又有其自身的特性和相对的独立性。本文建议,我国在制定民法典时应将船舶优先权的内容规定进去,并应与其他担保权一起而与物权、债权并列。
Maritime maritime law priority is an important legal concept and system that is peculiar to maritime law, but there has been heated debate both at home and abroad about its legal nature. Some scholars think it is procedural rights, some scholars think it is substantive rights; in the view of the substantive rights scholars, some people think that it belongs to the realm of property categories, and some people think that it is a category of claims. This paper argues that the maritime liens have both the characteristics of the real right and the features of the claims. They should neither be assigned to the real right nor should they be assigned to the obligee’s right, and should be the third kind of right parallel with the real right and the obligee’s right, that is, the security right. At the same time, it has its own identity and relative independence from other types of security rights. This paper suggests that China should stipulate the content of maritime liens in the formulation of civil code and should be tied with other security rights along with real rights and claims.