船舶优先权法律性质探析--兼谈民法典制定中的船舶优先权问题

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。

Research into the Nature of Maritime Lien

Maritime Lien is an important notion and system of Maritime Law, and much debate has been aroused about its legal nature both home and abroad.Some scholars maintain that it belongs to procedural right, while others hold that it should be classified into the substantive right. Even in the latter school of thought, some think that it should be categorized into the scope of real right, and some oters regard it as component of the obligatory scope. The writer of this article holds that it is both characteristics of the features of both real and obligatory rights; as a result, it should not be put into the scope of neither real right nor obligatory right. It is virtually a third sort of rights: that is,the warranty right,with real and obligatory rights compound to each other.Meanwhile,compared with other kinds of warranty right, it has its own features, thus its relative independence. The writer suggests that the contents concerning Maritime Lien should be included in the civil laws, compound to real and obligatory rights together with other warranty rights.