兩岸船舶拍賣法制之研究

A Comparative Study of the Legal Mechanisms Governing Ship Auctions in Taiwan and China

船舶執行具國際性、短暫性與特殊性，與一般財產執行有別。然我國船舶拍賣因法律規定致多數準用不動產執行程序，產生鑑價精緻度與專業性不足之疑慮，且無察看拍賣船舶、防免圍標情事機制，及欠缺國外買家友善獲知拍賣訊息之介面。復有拍賣通知時間過短、未給予船舶債權人知悉拍賣之適當途徑、船舶權利人權利之行使途徑迂迴等問題。中國關於一般財產之強制執行程序，係編定於民事訴訟法之中，但針對船舶之執行則另定海事訴訟特別程序法予以適用。是本文藉由中國海事訴訟特別程序法拍賣船舶制度之比較研究，提出可供借鑑之處，期可供日後法律修正暨實務運作之參考。

With the particularity, international and timeliness, maritime enforcement differs from ordinary property enforcement. However, in line with the related laws and regulations current in the ROC, most ship auctions in Taiwan are carried out with the same execution procedures used in real estate auctions, mutatis mutandis, resulting in a lack of professionalism and precision in valuation of ship. Moreover, it’s not possible to inspect the ship to be auctioned, there is no mechanism for preventing bid-rigging, and there is no user-friendly interface for foreign buyers to learn about the auctions. What’s more, the advance notice of the auction is very short, which makes it difficult for the ship’s creditors to become familiar with the case and take the best course of action. Finally, the circuitous and complex procedures involved tend to hinder the ability of the ship’s obligee to exercise his rights. In China, for cases relating to ordinary property, compulsory enforcement is treated as a civil procedure; but in maritime cases, compulsory enforcement is governed by a special set of admiralty proceedings. Based on these considerations, in this paper I make a detailed study of the system for auctioning ships in the special admiralty proceedings of mainland China, pointing out the elements therein which might be adopted when making future amendments to the maritime enforcement laws and mechanisms currently used in Taiwan.