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跨国光船租赁下船舶拍卖引发的数个抵押权的优先受偿顺位法律适用,有学者主张识别为程序性问题,依“程序问题适用法院地法”规则推出该问题的法律适用应适用法院地法,但依法院地法会不可避免地会带来择地诉讼的问题,导致各国的判决结果的不一致。更为甚者,适用法院地法很可能使依据船旗国法已有效设定的抵押权得不到法院地国的承认,从而损害抵押权人的利益。跨国光船租赁下同一船舶上数个抵押权的优先受偿位次的法律适用,应包含在船舶抵押权的法律适用之中,对该法律问题的定性应为实体性问题而非程序性问题,适用旗国法更为适当。
The priority of compensation for several mortgages arising from the auction of ships under the transnational bareboat chart is applicable in law. Some scholars advocate that the law applicable to the issue be identified as a procedural issue and the issue of “procedural law applicable to courts” The law of the court is applicable, but the law of the court will inevitably bring the issue of the alternative proceedings, leading to inconsistencies in the judgments of various countries. What is more, the law applicable to courts is likely to damage the mortgagee’s interests by allowing the mortgagee, which has been effectively set up under the flag state law, not to be recognized by the forum country. The legal application of priority class of several mortgages on the same ship under a transnational bareboat charter should be included in the law applicable to the mortgage of ship, and the legal issue should be characterized as substantive rather than procedural , Applicable national flag method is more appropriate.