جستجوی مقالات مرتبط با کلیدواژه « حقوق ممتاز دریایی » در نشریات گروه « فقه و حقوق »

Maritime liens are real security against the maritime estate and subject of the special system of payment and particular procedural rules which encourage the maritime creditors to help the vessels for continuing the voyage by providing the maritime liens and enforcing them immediately. In the contrary, procedure of bankruptcy include specific rules in relation with liquidation and reorganization of bankrupt which are governed the stay of proceedings against the debtor and collective proceedings which could make some conflicts in enforcement of maritime liens. This paper deals with the variety kinds of these conflicts and provides the manners of solving them through the analytical and descriptive method and by using the library resources and the comparative study in legal system of Iran, England, and France. Finally, regarding being the special law of each systems of bankruptcy and maritime, it seems necessary to add a rule that is overriding in this matter. In this respect, it is proposed that security rights over the ships are addressed within the particular regime they belong to, regardless of the time of their creation (before or after the bankruptcy procedure over the shipowner commenced).

Perhaps one of the most important and complex terms that is used by legislator in the Maritime Law of 1964 was the "marine mortgage contract". The importance of this institution is so that the legislator has allocated the third quarter of this law to this issue. The complexity of this contract in terms of nature and its effects is so that the relationship between this contract and mortgage contract in the civil Act is not clear. The nature of this contract has not determined by the legislator, however some (Farman Frmaeyan, 1977: 89 and Najafi Asfad, 1999: 80) believe that the nature of this legal institution is equivalent with the nature of the mortgage contract stipulated in the Civil Code and two contracts are different only as their effects. We reject this theory can be found that two contracts not only in the impacts, but also are different in nature, because if we believe in the difference in their impacts must naturally also be differences in the nature of the contract. In addition, on the one hand this contract is expressly under the Maritime Act of 1964 (Article 42); and on the other hand circumstances of conclusion of the contract, determining the nature of two contracts are different. Thus, the aim of this study is to analyze and determine the nature of the maritime mortgage contract.