Research On The Legal Issues And Improvements For The Chinese Maritime Injunction System In Judicial Perspective

Maritime injunction system is one legal system which was created on the judicial practice in recent years, and also on the reference to similar foreign legal systems.Since its establishment, maritime injunction system reflects the objective needs of relevant parties in Chinese legal practice, and plays an important role which cannot be replaced by other procedure law systems. However, as a special creation, the legal nature of maritime injunction system is not certain, and there are lots of practical disputes which have not been solved. The abuse of this system has also caused serious consequences. The paper discusses the establishment background, the influence, the legal nature and other legal issues of maritime injunction system, compares maritime injunction system with related foreign legal systems, analyzes its practical problems, and provides advices for its improvements.Besides the preface and conclusion, there are five chapters in this paper.Chapter One:The establishment and the influence of maritime injunction system. This chapter firstly researches on the background, the practical needs of maritime injunction system, analyzes its theoretical foundation in both civil law and civil procedure law, introduces its establishment process and relevant disputes during this process. This chapter also states its influence to Chinese behavior preservation system in both theory and legislation.Chapter Two:Legal nature of maritime injunction. This chapter researches on the legal nature of maritime injunction to start with the concepts, the functions, the natures and the characteristics of civil preservation and behavior preservation. The author lists the Chinese scholars’ different views together with their reasons. On the basis of above, the author ranks the maritime injunction as one type of behavior preservation from the demonstration of four aspects. This chapter also concludes that this system should be affected by the theory and legislation of behavior preservation system.Chapter Three:The analyses on maritime injunction system in comparative law. This chapter compares maritime injunction with similar foreign legal proceedings, including freezing injunction, interim injunction, provisional punishment. This chapter interprets the contents and basic procedure rules of the three kind of legal proceedings, compares them with maritime injunction, and draws inspiration from the three legal proceedings for the improvements of maritime injunction.Chapter Four:The legal problems in practice for the implement of maritime injunction system. This chapter points out relevant practical problems in judicial perspective, including how to define the application of this legal system and whether to supplement other conditions for such application, the difficulties in its examination of Chinese courts. This chapter also researches on the disputes on the ascertain, the exemption, the return of guarantees provided by the applicant. The author advises the usage of maritime injunction system to achieve similar functions of anti-suit injunction and the interpleader. In this chapter, the author also analyzes the obstacles in the process of its enforcement, the concurrent with other judicial proceedings, the feasibilities of worldwide maritime injunction.Chapter Five:The proposals to improve maritime injunction system. On the foundation of the preceding four chapters, this chapter focuses on the solutions of some judicial difficulties in this legal system. In view of its legal characteristics, the comparison with other foreign similar legal system, the difficulties in judicial practice, the author advises to establish the obligations of applicant for the production of all relevant proofs, to amend the procedure for applicant’s guarantee, to try adopting the punitive damages in some certain conditions, to apply the maritime injunction in both urgent matters and to the contrary.