2. "Mentougou Court reflects that there are three problems in handling disputes over vehicle-linked operation contracts."
Members of the research group: Xie Hua, Zhang Kexin, Huang Siqi and Luo Sumei.
(This article was published in People's Judicial Application, No.23, 2009)
The phenomenon of ship docking widely exists in inland river and coastal waterway transportation, which promotes and prospers the water transportation industry to a certain extent. However, due to the imperfect related systems and poor supervision, many affiliated enterprises are poorly managed, resulting in some problems. In maritime trials, a large number of maritime commercial disputes involve the docking of ships. Because there are no special laws and regulations to adjust the ship docking relationship in China, and the legitimacy of the docking relationship is not clearly identified, how to standardize the legal relationship between the parties involved in ship docking operation and then clarify the relevant responsible subjects has become one of the difficult problems faced by maritime judicial practice. In order to ensure the correct application of the law and unify the judicial standards, the author investigates and studies the legal problems arising from ship anchoring.
First, the status quo of China's ship affiliated operation
In 200 1 year, the Ministry of Communications issued the Notice on Rectifying and Regulating the Operation and Management of Individual Transport Vessels according to the relevant requirements of the Regulations on the Administration of Shipping Qualification in China, so as to carry out special rectification of individual transport vessels and urge individual shipping operators to carry out enterprise management. In recent years, the phenomenon of coastal ship berthing has basically been eliminated, but the behavior of inland ship berthing still exists, especially the trend from coastal areas to inland provinces is obvious, mainly concentrated in inland port cities with convenient waterway transportation. The author analyzes the types of ship's affiliated forms and divides them into pure affiliated type and semi-affiliated type according to the degree of affiliated operation. The former is mainly a limited company established by township collective shipping enterprises or individuals with waterway management qualifications. There are no ships or only a few ships, and ancillary management fees are collected by helping individual and private ships obtain certificates, providing services and managing safety. The latter are mainly state-owned collective shipping enterprises and joint-stock enterprises formed by this restructuring, and there are also limited companies formed by individuals. These enterprises have a certain number of ships, mainly to manage their own ships, and also take some individual ships to help them handle relevant certificates, help them deal with problems and collect phone bills.
According to the purpose of affiliation, affiliation forms are divided into business qualification affiliation and safety management affiliation. Most ships are qualified to operate. Because the Regulations on the Administration of Domestic Shipping Business Qualification requires that you must have corresponding qualifications to engage in domestic waterway transportation, individual shipping operators have signed internal agreements with some shipping companies with shipping business qualifications? These enterprises will apply for registration for individual transport operators in their own names and issue relevant certificates for obtaining ship operation certificates. Although these transport enterprises are registered as shipowners or ship operators, they do not actually carry out any business activities. Safety management is a management rule based on the safe operation and pollution prevention of ships, which requires that the operating ships must be managed by the company that establishes and operates the safety management system. Individual transport operators have signed entrustment management agreements with some qualified ship management companies, but these agreements only stay on paper. In fact, the ship management company has not really fulfilled its management responsibility for these ships. Business association is divided into "explicit dependence" and "implicit dependence". "Open berthing" means that the registered owner of the ship is the same as the actual owner, and both of them are related parties. However, the ship registration operator is different from the actual operator. The registered operator is a related party, and the actual operator is a related party. "Stealing" means that the registered owner of a ship is different from the actual owner. The registered owner is a related party and the actual owner is a related party. In short, the main feature of affiliated companies is that # individuals, partnerships or legal persons with low or no qualifications engage in waterway transportation in the name of enterprises with required qualifications, and pay certain management fees or other forms to affiliated companies for their borrowed business qualifications or safety management systems.
Secondly, the situation and problems of the court hearing maritime commercial cases involving anchored ships.
Many maritime commercial cases tried by maritime courts involve the docking of ships, and the handling of this issue often becomes the key factor affecting the substantive judgment. Due to the lack of clear legal provisions, there are many problems in the legal application of ship anchoring disputes in judicial practice.
Characteristics of maritime courts in handling cases of ship anchoring.
Application of ship anchorage law in several typical maritime commercial litigation cases.
Judging from the current laws and regulations in China, the provisions on ship ownership are mainly Property Law, Maritime Law and Regulations of the People's Republic of China on Ship Registration (hereinafter referred to as the Regulations on Ship Registration). Article 24 of the Property Law stipulates that "the establishment, alteration, transfer and extinction of property rights such as ships, aircraft and motor vehicles shall not be against a third party without registration". Article 9 of Maritime Law stipulates: "The acquisition, transfer and extinction of ship ownership shall be registered with the ship registration authority! If it is not registered, it shall not fight against a third person "; Article 5 of the Regulations on Ship Registration stipulates: "The acquisition, transfer and extinction of ship ownership shall be registered with the ship registration authority! If it is not registered, it may not confront a third person. " It can be seen that the ownership and change of ship ownership in China adopts the registration confrontation system of real right change, that is, the acquisition and change of ship ownership takes the registration of ship ownership as the important element of confrontation. If the registered owner is the same as the actual owner, the applicable law will not be controversial. However, when a ship is anchored, there are often two owners of the anchored ship at the same time, namely the registered owner and the actual owner. The former is characterized by ship registration, while the latter is based on ship purchase contract, capital contribution certificate and ship affiliation agreement. This inconsistency between the registered owner and the actual owner is the basic contradiction in the legal sense of the ship's affiliated operation, which leads to the complexity of the legal relationship of related maritime disputes. The former is characterized by ship registration, while the latter is based on ship purchase contract, capital contribution certificate and ship affiliation agreement. This inconsistency between the registered owner and the actual owner is the basic contradiction in the legal sense of the ship's affiliated operation, which complicates the legal relationship in related maritime disputes # Can the registered owner exercise the ownership of the ship? How to determine the ownership of a ship when a third party is involved? In the case of taking responsibility, how to determine the responsible subject?
1, the law involved in the dispute over the ownership of anchored ships is applicable.
Plaintiff Zheng v defendant Fangchenggang, a shipping company, bought the ship at Zheng's expense? The ship is engaged in the transportation of goods by sea, and signed a ship anchoring agreement with a shipping company in Fangchenggang, stipulating that the ship will be operated by Zheng, and the shipping company will not participate in the operation and only charge management fees. The ownership of this ship actually belongs to Zheng. Ship owners and operators are registered as shipping companies when handling ship registration and business license. In order to get rid of the debt crisis, a shipping company used this round to pay off debts. Before the two parties went through the registration of ship ownership change, Zheng found that a shipping company wanted to dispose of the ship, so he appealed to the court to confirm that it was the actual owner of the ship, and a shipping company had no right to dispose of the ship without authorization. The shipping company counterclaimed in the lawsuit, calling it the registered owner of the ship? Zheng is only the actual operator and does not enjoy ownership, so he needs to confirm the ownership of his ship. After trial, the court held that according to the ship purchase certificate and the affiliated agreement provided by Zheng, the ship was purchased by Zheng and operated by himself. The shipping company only collects management fees, and all the functions of ship ownership are actually exercised by Zheng. Registration of ship ownership and management rights in the name of the shipping company is an agreement reached by both parties according to business needs? Shipping companies can't actually exercise the right of ship ownership on this basis. Due to the failure to register the change of ownership of the ship, according to Article 9 of the Maritime Law, the behavior of the shipping company to pay debts with the ship has no antagonistic effect, and the creditors of the shipping company cannot obtain the ownership of the ship based on the goodwill of a third party, so the judgment confirms that Zheng enjoys the actual ownership of the ship.
Although there is no law regulating the connection of ships in China, according to the provisions of Property Law and Maritime Law, under the above circumstances, the ownership of ships should be realistically recognized as enjoyed by the related parties. That is to say, under any circumstances, including when there is an economic dispute with the anchor, the anchor cannot claim ownership from the anchor on the grounds that he is the owner of the ship registration. However, from the case, there are still several problems to be solved. # Can the related party change the ownership of the ship in its own name or in the name of the related company without the consent of the related company?) How should the third party distinguish the related ship from the actually owned ship in the process of purchasing the ship from the shipping company? (Is the registration of the ship owner and operator reasonable?
3. How to determine the legal application of the nature of liability when the related party bears the liability for compensation?
Su Mou sued the court, demanding that Su Mou and a shipping company * * * bear joint and several liability for compensation. Because 1 ship sank in the accident, the shipowner applied to arrest two ships registered in the name of a shipping company. After the court took seizure measures according to law, Zhang, the actual owner of Mifune, sued a shipping company in the name of the actual owner of Mifune, demanding to confirm that the owners of the two ships were Zhang. After trial, the court ruled that Sue was liable for the accident losses, and a shipping company was liable for supplementary compensation for the losses. In the latter case, the court ruled that the owners of the three ships were Zhang. In this case, although Zhang had nothing to do with the accident, the ship registered by Zhang in the name of a company was detained because a company was responsible for the accident. Although the ownership of the ship was finally confirmed through the confirmation litigation, it increased the litigation burden of the parties, which may also provide an opportunity for the shipping company to evade responsibility. Although it doesn't matter, because a company was responsible for the accident, Zhang's ship registered in the name of a company was detained. Although the ownership of the ship was finally confirmed through the confirmation litigation, it increased the litigation burden of the parties, which may also provide an opportunity for the shipping company to evade responsibility.
4. Laws applicable to ship anchorage involving ship mortgage.
In disputes involving ship mortgage, the difficulty and controversy in the application of law caused by ship docking mainly lies in whether the docking enterprise mortgages the ship without the consent of the actual owner of the ship.
In the case of the dispute over ship ownership between the plaintiff Zhangzhou Shipping Company and Lu Mou v. the defendant Fujian Shipping Company tried by a maritime court, 1994, Lu Mou purchased MRT 44 and attached it to the defendant's name. The two sides agreed that the ship was registered with the defendant and operated by Lu, and the defendant charged a management fee every month. In May, the plaintiff Zhangzhou Shipping Company and Lu Mou agreed with the defendant to transfer the ship to a shipping company in Zhangzhou. Later, the plaintiff changed the name of the ship to Tongli, and went through the formalities of ship ownership transfer in Zhangzhou Transportation Bureau, Fujian Provincial Communications Department and other units, and cancelled the "MRT 44" ship operation certificate. When the plaintiff went through the formalities of cancellation of the ship's transfer in Xiamen Port Supervisor, it was found that the defendant mortgaged the ship to a branch of Industrial and Commercial Bank of China on1996165438+10. As the ship was mortgaged, Xiamen Port Supervisor refused to go through the cancellation registration procedures, and the ship failed to resume sailing. 1September, 1996, the plaintiff applied for a temporary operation license and started operation. 199665438+February, the temporary operation certificate expired. After that, the ship can't operate and can't handle the transfer registration. To this end, the plaintiff filed a lawsuit, claiming that the ship involved was owned by him and demanding compensation from the defendant. After trial, the court ruled that the ship ownership of MRT 44 still belongs to Lu. The defendant dismantled the mortgage set on MRT 44 within a time limit, and was responsible for the transfer registration of ship ownership, registering the owner as a shipping company of the plaintiff Zhangzhou. In this case, the defendant set mortgage on the ship without Lu's consent, which violated Lu's legal rights. The ship transfer agreement signed by a shipping company in Zhangzhou, the defendant, and Lu Mou, the plaintiff, is the true intention of the three parties and is legal and valid. After Lu performed his obligations according to the contract, the defendant did not lift the mortgage set for MRT 44, which made it impossible for the ship to handle the transfer registration and operation license. After the temporary operation certificate expires, it cannot be operated. The defendant should be responsible for the failure to transfer the ship and the economic losses caused to Lu Tian. It is generally believed that the defendant, as a related party, does not own the ownership of the related ship "MRT 44". Then, is it effective to mortgage the defendant "MRT 44" to a branch of ICBC, and can a branch obtain the mortgage right? The Property Law recognizes the bona fide acquisition of mortgage and applies the conditions of bona fide acquisition of ownership. Therefore, under the above circumstances, we should distinguish the internal legal relationship between the ship's affiliated operation and the external legal relationship between the affiliated ship and the third party. Branches only need to prove that they are a bona fide third party, and they don't know and shouldn't know that the mortgagor is not the real owner when they get the mortgage, so they can get the protection of registration credibility.
Three, ideas and suggestions to solve the legal problems of ship anchoring.
So far, there are no special laws and regulations to adjust the relationship between ships. In practice, there are great differences on the legal issues involved in the relationship between ships. Therefore, it is urgent to improve legislation or introduce judicial interpretation as soon as possible to unify the legal application of disputes caused by ships and ship problems. The author puts forward the following suggestions:
1. Generally, the ship-related agreement signed between the related party and the affiliated company shall be regarded as valid.
In coastal traffic, there are a large number of ship-affiliated business forms, which have played a great role in promoting and prospering the transportation industry and promoting economic development. Article 43 of the Supreme People's Court's Opinions on Several Issues Concerning the Application of the Civil Procedure Law stipulates: "If an individual industrial and commercial household, individual partnership or private enterprise is affiliated with a collective enterprise and engages in production and business activities in the name of a collective enterprise, the individual industrial and commercial household, individual partnership or private enterprise and the affiliated collective enterprise are * * * co-litigants in the lawsuit". The State Council and its ministries and commissions also have relevant regulations on affiliated operation, which shows that our laws have a licensing attitude towards affiliated operation under certain historical conditions. Judging from the spirit of the Provisions on the Administration of Domestic Waterway Transport Business Qualification and the Notice on Implementing the Provisions on the Administration of Domestic Waterway Transport Business Qualification, although the state requires the original affiliated individuals and units to change their business methods, it does not explicitly prohibit affiliated operations. Moreover, Article 4 of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of the Contract Law stipulates: "When the people's court confirms that the contract is invalid, it shall be based on the laws formulated by the National People's Congress and its Standing Committee and the administrative regulations formulated by the State Council, and shall not be based on local regulations and administrative rules." This provision not only clearly explains the legislative intention of the contract law, but also shows the legislator's position of trying to avoid the invalidity of legally established contracts. Because the ship anchoring agreement signed by both parties to the ship anchoring is a true expression, and the law does not prohibit the signing of the ship anchoring agreement, in the practice of maritime trial, the contract concluded by the anchoring operator in the name of the anchored unit should generally be regarded as a valid contract as long as it does not harm the interests of the state and society.
2, clear the relationship between the registered owner, the actual owner and the third party.
First of all, about the internal relationship between related parties and affiliated parties. The legal relationship between the two parties is based on the ship anchoring agreement, which generally stipulates that the anchored party shall bear the obligation to allow the anchored party to use its unit name and maritime navigation management right, and enjoy the right to charge the other party! The related party undertakes the obligation to pay the expenses to the related party, and enjoys the right to use the name of the other party and the right to operate the navigation. As for the ownership of the affiliated ship, the affiliated contract signed by both parties often clearly stipulates that the ownership is not transferred and still belongs to the affiliated party. Therefore, the ownership of the ship should be realistically recognized as enjoyed by related parties.
Regarding the assumption of rights and obligations, if the third party is the debtor, although the related party still participates in the litigation together with the related party, it should not enjoy the corresponding rights because it has not participated in the operation of the ship and has not suffered losses.
If the third party is a creditor, there are three different opinions in the trial practice, that is, the related party and the related party bear joint and several liability, the related party bears supplementary liability, and the related party does not bear liability. The author believes that the related parties, as the actual owners and operators, should bear direct responsibility for the losses caused by the operation. As a registered car owner, the affiliated party provides the transportation license to the affiliated party and charges a certain management fee. From the perspective of maintaining transaction order and security, related parties should bear certain responsibilities. Moreover, affiliation is, after all, an act of evading laws or policies, which may easily lead to operational risks and management problems. If the anchored party does not undertake any liability for compensation at all, it will connive at the anchored party not discriminating against individuals, partnerships or legal persons who apply for anchoring, and will also make the anchored party not actively perform its supervisory responsibility for the anchored ship, which will ultimately harm the interests of others and even endanger the industry management and water traffic safety. However, if joint liability is assumed, it will increase the operating pressure of enterprises and adversely affect the development of shipping industry. Therefore, the author believes that the affiliated party should bear the supplementary liability for compensation. However, it is in the case of disputes with third parties caused by anchoring ships. If it is a dispute between the affiliated party and a third party, the affiliated party needs to bear the responsibility. We believe that the affiliated party is not the actual owner of the affiliated ship, and the third party at this time is not a bona fide third party recognized by law, so the liability property of the affiliated party should not extend to the affiliated party's ship. Of course, when dealing with this situation, the court should pay attention to strict examination to prevent the affiliated party from maliciously colluding with others to identify all its ships as affiliated ships, thus avoiding debts.
1, and gradually improve the system of registration and publicity of ships' affiliated operations.
On the one hand, the phenomenon of affiliated management is widespread and plays a specific role in the current economic life, so it is necessary to affirm the legitimacy of its specific historical stage. At the same time, however, due to the imperfection of the affiliated commercial registration system, various maritime commercial disputes have also been triggered, which has further affected the fair competition order in the market and the effective supervision and management of the competent authorities.
By September 7th, Mentougou Court had accepted 18 disputes over affiliated business contracts, up by 200% year-on-year. Litigation requests for disputes over affiliated business contracts generally include the affiliated party suing the affiliated party for terminating the agreement, returning the vehicle, and assisting in handling vehicle transfer procedures. After investigation, Mentougou Court reported that there are three problems in handling such disputes:
First, it is difficult to find out the facts and try cases. First, the affiliated parties in the dispute are mostly individuals, and their awareness of self-protection is not strong. They often sign subsidiary agreements directly without carefully understanding the terms. When a dispute occurs, it is found that the two parties have not clearly agreed on the term of the agreement, and there is no evidence to prove that there is a legal cause for dissolution, which makes it difficult for the court to ascertain the facts and support its claim for dissolution of the contract. Second, the related party fails to claim or properly keep the management fees, deposits, insurance premiums, grading fees, secondary maintenance fees and other bills paid by the related party. The related party often refuses to terminate the contract or return the vehicle or assist in the transfer of ownership on the grounds that the related party has not paid the agreed fees according to the contents of the agreement, which makes it difficult for the court to judge whether the related party has paid the corresponding fees. Thirdly, in the case that the related party requests the related party to assist in handling the vehicle transfer after the contract is terminated, the related party fails to prove that it has requested the related party to handle the transfer formalities in time, and the vehicle has been registered in the name of the related party for several years after the contract is terminated, so it is difficult for the court to judge the fault degree of both parties.
Second, there is a lack of uniform provisions and it is difficult to apply the law. On the one hand, the affiliated business contract is not a well-known contract in contract law. When signing this contract, both parties have different names, such as "ordinary truck affiliated operation contract", "vehicle affiliated service agreement" and "combined transportation agreement". Due to the lack of clear regulations and constraints on "affiliated operation" in the existing laws, the rights and obligations of both parties can only be defined according to the contents agreed by the parties or the basic principles of the general principles of civil law, with reference to the provisions on nameless contracts in the contract law. On the other hand, there are differences in cognition and value judgment among different judges. For example, there are three different understandings about the confirmation of vehicle ownership in litigation, which are "subject to registration, subject to actual delivery or the principle of fair and equivalent compensation". In addition, there are different understandings about the nature of the procedures such as paying fees, handling operation license and second insurance, the behavior of the affiliated unit to detain or dispose of vehicles, and the fault liability sharing of vehicles that cannot be transferred, which eventually leads to inconsistent judgment results.
Third, the transfer of vehicles is limited and the rights and interests are difficult to realize. Even if the court finds that the affiliated party should assist in the vehicle transfer procedures, it is still difficult for the affiliated party to effectively safeguard the rights and interests of the vehicle. On the one hand, according to the Regulations on Road Transport, freight operators should obtain road transport business licenses and industrial and commercial business licenses. In contract disputes, most related parties are individuals. If the related party transfers the vehicle to its own name through litigation, it will face the situation that it is unable to apply for the operation license and thus cannot engage in the transportation of goods, and thus cannot realize the use value of the truck. On the other hand, related parties often request to transfer the vehicle to another company's name, but because the agreement only involves related parties and affiliated units, it is impossible to transfer the vehicle to another company's name without breaking through the relativity of the contract, which leads to the situation that the related parties are not qualified to apply for the operating license and the vehicle is still registered in the name of the affiliated unit.