The mortgage is transferred to
In the case of non-financial institutions
Ship Mortgage Transfer Analysis
A typical case of KNOW ships
Case overview, legal basis, case analysis, relevant extensions
Case Overview
Company A mortgaged the vessel "Jin X" to the state-owned Bank B, and the two parties completed the registration of the mortgage at the ship registration authority. Later, in order to consolidate and go public, Bank B disposed of the non-performing assets and transferred its claims against Company A and the mortgage on the "Golden X" to Asset Management Company C, but did not come to the ship registration authority to handle the change registration of the transfer of mortgage rights. Subsequently, Asset Management Company C and Shipping Company D signed the Creditor's Rights Transfer Agreement, transferring its claims against Company A and its collateral mortgage rights to Shipping Company D, but did not register the transfer of ship mortgages. N years later, due to the contract dispute between Company A and Trust Company E, the court seized the "Golden X" wheel, and Shipping Company D filed an enforcement objection with the court. At the same time, Shipping Company D applied to the ship registration authority for the registration of the transfer of the mortgage of the "Golden X".
01 Legal basis
Article 407 of the Civil Code is the main legal basis for the transfer of mortgage rights, which stipulates that "the mortgage right shall not be transferred separately from the creditor's right or used as security for other creditor's rights." Where the creditor's right is assigned, the mortgage right securing the creditor's right shall be transferred together, except as otherwise provided by law or otherwise agreed by the parties. ”
Article 546 stipulates the obligation of notification of the assignment of creditor's rights. If the creditor assigns the creditor's rights without notifying the debtor, the assignment shall not be effective against the debtor. The notice of assignment of claims may not be revoked, except with the consent of the assignee.
Article 23 of the Regulations on the Registration of Ships and Article 51 of the Measures for the Registration of Ships are the main legal basis for the registration of the transfer of ship mortgages, which stipulate that "when the mortgage of a ship is transferred, the mortgagee and the transferee shall apply for the registration of the transfer of mortgage rights to the ship registration authority of the port of registry with the contract for the transfer of ship mortgages." If the examination complies with the provisions of these Regulations, the ship registration authority of the port of registry shall enter the transferee as the mortgagee in the ship registration book and the ship ownership registration certificate, and issue the ship mortgage registration certificate to the transferee, and seal the original ship mortgage registration certificate. Before handling the transfer of the mortgage of the ship, the mortgagee shall notify the mortgagor. ”
02Case Study
In this case, the "Golden X" round mortgage was transferred twice.
(1) The first transfer of ship mortgage.
The first transfer was the signing of the Agreement on Divestment and Acquisition of Non-performing Assets between Bank B and Asset Management Company C, transferring the main creditor's rights and subordinate rights enjoyed by Bank B to Company A to Asset Management Company C, and issuing a Notice of Confirmation of Assignment of Creditor's Rights to Company A, and Company A signed the Receipt of Confirmation Notice of Assignment of Creditor's Rights as the debtor and guarantor. With regard to this transfer, the Regulations on Financial Asset Management Companies (Decree No. 297 of the State Council) clearly stipulate that there is no problem with the legality of the transfer of creditor's rights and mortgage rights of the financial asset management companies in the acquisition of non-performing loans of state-owned banks in accordance with the scope and quota determined by the State Council. In addition, the Supplementary Notice of the Supreme People's Court on Issues Concerning the Acquisition and Disposal of Non-Performing Assets of Banks by Financial Asset Management Companies (Fa [2005] No. 62) further clarifies that "where a state-owned commercial bank (including a state-controlled bank) transfers a non-performing loan to a financial asset management company, or a financial asset management company acquires or disposes of a non-performing loan, the secured creditor's rights shall be transferred at the same time without the consent of the guarantor, and the guarantor shall continue to bear the guarantee liability to the transferee within the scope of the original guarantee." The stipulation in the guarantee contract that the change of the contract requires the consent of the guarantor is not binding on the creditor's transfer of creditor's rights. ”
(2) The second transfer of ship mortgage.
The second transfer was the signing of the Creditor's Rights Transfer Agreement between Asset Management Company C and Shipping Company D, in which Asset Management Company C transferred its creditor's rights and subordinate rights to Company A to Shipping Company D, and issued a Notice of Confirmation of Creditor's Rights Transfer to Company A, specifying that the collateral was the "Golden X" round, and Company A signed the Receipt of the Confirmation Notice of Creditor's Rights Transfer, indicating that it had no objection to the transfer of the mortgage rights of the "Golden X" round. The ship registration authorities have always been cautious about the legitimacy of the identity of non-financial institutions as the subject of mortgage registration, mainly because of the provisions of the General Rules on Loans promulgated by the People's Bank of China in 1996 that enterprises shall not handle loans or disguised loan financing business in violation of state regulations. Although the Regulations on Financial Asset Management Companies stipulate that a financial asset management company may lease or transfer or restructure the assets formed by the acquired non-performing loans, it does not clearly stipulate or restrict the qualifications of the transferee of the transferred creditor's rights.
In this regard, we can refer to the Reply on Issues Concerning the Legal Effect of the Transfer of Loan Claims by Commercial Banks to Social Investors (Yin Jian Ban Fa [2009] No. 24) issued by the General Office of the China Banking Regulatory Commission (CBRC) for understanding and judgment. The Reply makes it clear that: first, the transfer of creditor's rights by a bank is not a violation of the mandatory provisions of laws and administrative regulations, and the contract should be deemed valid. Second, commercial banks may transfer loan claims to natural persons, other organizations, and financial institutions and non-financial legal persons. Third, the act of transferring specific loan claims is a transfer of contractual rights by the creditor to a third party, and is not a business activity of granting loans to unspecified objects in society, and does not involve the issue of qualifications to engage in loan business, and the transferee does not need to have the qualifications to engage in loan business. At the same time, this behavior is not an act of circumventing the "prohibition of lending between non-financial enterprises".
In addition, in this case, due to the issue of Shipping Company D's objection to the court, the court issued a civil judgment after trial, confirming that the assignment of the creditor's rights between Asset Management Company C and Shipping Company D was legal, and that Shipping Company D enjoyed the mortgage right of the "Golden X" round against Company A. This judgment can be used as the most direct and powerful basis for the legitimacy of the identity of Shipping Company D as the subject of mortgage registration.
(3) Restrictions on the registration of changes in mortgage rights by the court's seizure.
In the case of a dispute over arrears for the repurchase of securities between Company A and Trust Company E, the court, on the basis of the application of Trust Company E, seized all the "Golden X" vessels owned by Company A, issued a Civil Ruling, which stated that "during the period of seizure, no transfer, mortgage or transfer of ownership shall be allowed without the permission of this court", and issued a Notice of Assistance in Enforcement to the ship registration authority. After Shipping Company D raised an objection to the court, the court held that Shipping Company D had obtained the position of the creditor of Company A and actually enjoyed the mortgage right on the "Golden X" before the seizure, and that the trust company, Company A and Shipping Company D jointly confirmed that the actual mortgagee of the "Golden X" was Shipping Company D, and the court issued a Letter to the ship registration authority on the Procedures for Changing the Registration of the Mortgage Owner of the "Golden X" Ship. At this point, the court seized the restrictive factors on the registration of the change of mortgage rights of the "Golden X" round.
Based on the above analysis, in this case, the ship registration authority received the creditor's rights transfer agreement corresponding to the two mortgages of the "Golden X" vessel, the notice of confirmation of the transfer of creditor's rights, the receipt of the confirmation notice of the transfer of creditor's rights, the confirmation letter issued by Company A confirming the creditor's rights of Shipping Company D against Company A and the mortgage of the "Golden X", the civil judgment issued by the court confirming that Shipping Company D enjoyed the mortgage right of the "Golden X" ship against Company A, and the "On the Possibility of Continuing to Handle the Mortgage of "Golden X" issued by the court to the ship registration authority. Letter of Change of Registration Procedures for Other Owners of Wheel Mortgage", written explanation of the original registered mortgagee, Bank B, agreeing to the registration and transfer of the mortgage of the "Golden X", the registration certificate of the ship's ownership, and the original mortgage registration certificate, handled the registration of the change of mortgage for the "Golden X", sealed the original mortgage registration certificate, issued a new ship mortgage registration certificate to Shipping Company D, and recorded Shipping Company D as the mortgagee in the ship registration book and the registration certificate of ship ownership.
03 Related extensions
(1) The Regulations on Financial Asset Management Companies (Decree No. 297 of the State Council) stipulate that financial asset management companies shall operate in accordance with the principles of openness, competition and merit-based management and disposal of assets formed by the acquisition of non-performing loans of state-owned banks. The transfer of assets by a financial asset management company mainly takes the form of bidding and auction. The Ministry of Finance's Administrative Measures for the Disposal of Assets of Financial Asset Management Companies (Cai Jin [2004] No. 41) stipulates that when a financial asset management company transfers non-performing assets, it shall, in principle, adopt the method of bidding and bidding. The China Banking Regulatory Commission's Reply on Issues Concerning the Legal Effect of the Transfer of Loan Claims by Commercial Banks to Social Investors (Yin Jian Ban Fa [2009] No. 24) clearly states that the transfer of loan claims by commercial banks to social investors must be standardized: risk management systems, internal control systems and other corresponding systems and internal approval procedures must be established; Auction and other public forms shall be adopted for the transferred loan creditor's rights, so as to form a fair price and accept social supervision; If the loan creditor's rights are transferred, it shall be reported to the CBRC or the dispatched agency and subject to the supervision and inspection of the regulatory authorities. The Minutes of the Working Symposium on the Trial of Cases Involving the Transfer of Financial Non-performing Debts (Fa Fa [2009] No. 19) of the Supreme People's Court clearly states that in litigation on the validity of non-performing debt transfer contracts, the people's courts shall, in accordance with relevant laws and regulations and with reference to relevant national policies, focus on examining the transferability of non-performing debts, the eligibility of the assignee, and the fairness and legality of the transfer procedures. As a ship registration authority, it has no duty to review the transferability of creditor's rights and the legality and fairness of the transfer procedure, but when handling the registration of mortgage transfer, it is best to pay attention to whether it has gone through bidding procedures such as competition and bidding.
(2) The transfer of mortgage rights related to the disposal of non-performing assets of banks is often accompanied by legal disputes, and it is very easy to have assistance in enforcement, or even multiple assistance in enforcement. When registering a change in mortgage right, the ship registration authority needs to identify whether the contents of each Notice of Assistance in Enforcement and its corresponding Civil Ruling restrict the change of mortgage rights, and pay attention to the date of assistance in enforcement of each Notice of Assistance in Enforcement.
Source: Ship Registration Research Office
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