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鄭完溶 圓光大學校 1989 論文集 Vol.23 No.1
In order to purchase existing vessels or other the building of new vessels, it is necessary for finance to be freely available. To encourage the provision of finance, a method has been developed in most national systems of assuring financiers that their loans are protected. Mortgages(at Common law) and hypotheques(in civil law) are designed to provide security to the lender of money(the mortgagee) in that he has the right to satisfy his claim with priority over most other claimants against the vessel and his security remains intact even if the mortgaged vessel is transferred to new ownership. The right of the mortgagee is enforced through the sale of the mortgaged vessel. A person wishing to purchase an existing vessel or order the building of a new vessel(the mort-gagor) will borrow the purchase money from a bank or other financial institution(the mortgagee). An agreement will be made between these two parties as to the repayment of the loan capital and other matters such as the amount of interest on the loan, insurances required and events causing the repayment of the loan. The mortgage agreement gives to the mortgagee the vessel as security which can be realized by arrest and sale in the event that the loan is put in jeopardy. It is possible to transfer ownership of a mortgaged vessel but the mortgage remains attached to the vessel. Although the mortgagee acquires "property" in the vessel, he is not entitled to make use of it so long as the mortgagor is not in default;his "property" ceases automatically and reverts to the mortgagor if the latter has performed all the obligations which are assumed by the mortgagee, otherwise the mort-gagee's right as a proprietor gets effect although only temporarily and to a restricted extent. In civil law systems the method differs:in the case of non-performance of the borrower's obligations, the person entitled may not take possession of the vessel but must apply to the court or to a suitable judicial authority as being competent for enforced sale in order to be satisfied from the proceeds of the enforced sale. The legal institution of hypotheque maritime upon a vessel follows the model of land own-ership. Private landed property can be used as security for the landowner's debt or that of a third person in whose favour the hypotheque has heen granted. Most national systems provide for the recognition of mortgages only when these have been recorded in a national register.