On The Legitimacy Of Maritime Preservation System Of China

Maritime procedure is a basic system which ensure the parties’ right to be fairly protected by providing a smooth approach to solve marine disputes. The procedure focus on how to guarantee the dispute-solving approach comply to the basic spirit of law harmoniously and whether the court verdict or arbitration award is obtained in accordance with legal procedures. Maritime claim preservation System provides a reasonable protection approach for smoothly solving the marine lawsuit disputes. However, the essence of such means is to temporally restrict the rights of the litigants, therefore, the abuse or improper provision of this means may greatly impair the litigants’benefit.Maritime preservation procedure should be a due procedure essentially. However, whether Chinese laws on Maritime preservation procedure meet the requirements of due procedure may be judged by certain criterion. Therefore, after studying the main system of maritime preservation procedure, this paper point out that the maritime claims preservation system in China, judging from specific criterion, has not only gene of due procedure, but also that of undue procedure. This paper concludes that it is necessary to revise and amend maritime preservation procedure according to reasonable criterion.There are four chapters in this paper.Chapter One: the due procedural basis of maritime preservation procedure. This chapter studies the legitimate characteristics of maritime preservation, points out five criterion to judge the legitimacy of maritime preservation, analyzes the judicial legitimacy of maritime preservation, and gives out the reason why maritime preservation procedure needs legitimacy.Chapter Two:The legitimacy of basic rules of maritime claims preservation. This chapter deeply studies the legitimacy of the basic rules of maritime claims preservation, such as start rules, jurisdiction rules, security rules, decision rules and remedy rules. Chapter Three:A legitimacy study of the arrest and auction of ships and goods on board. In this chapter, the following issues are discussed with the demand of legitimacy: the legitimate factors of deciding the scope of ships and goods on board are arrested, the legitimacy of arresting the involving ship, the sister ship and the goods owned by the defendant, the forbidding and permitting of repeatedly arresting one ship, and the legitimacy consideration of auction thereof, especially the choice of realization procedure of ships and goods on board.Chapter Four: The legitimacy of maritime injunction. This chapter discusses the legitimacy of Mareva Injunction which is compared with maritime injunction in China from the view point of legitimacy. The author also analyzes the legitimacy of the maritime injunction provided in China Maritime Procedure Law.Conclusions:In the end of the dissertation, the author draws some conclusions on the legitimacy of maritime claims preservation procedure of China and points out that it should be a legitimate process except some shortcomings, and China Maritime Procedure Law shall be amended and revised with the considerations of due procedure.