A Study On The Maritime Injunction System

As a unique system of Special Maritime Procedure Law, maritime injunction is a product of the maritime judicial practice. However, theory and practice of confusion and imperfect also emerge with more than 10 years of judicial practice.From the specialized needs of the maritime litigation, and maritime injunction issues prior to the establishment of judicial practice and trial produced, this paper elaborates the background and practical significance of maritime injunction. From provisions of law and judicial practice, it analyzes the basic connotation and extension of maritime injunction, basic features, types of maritime injunctions according to different criteria, and its important judicial function. Early in the legislation of "Special Maritime Procedure Law", there is an intense controversy in maritime injunction property, which leads to eventually named maritime injunction rather than marine behavior preservation. Therefore, based on elaborating the background of maritime injunction, this paper analyzes the nature of maritime injunction by comparison. Comparing maritime injunction system with the system of civil preservation in China, the injunction system in British etc., this paper clarifies the links and differences between maritime injunction system and those systems, and points out that since the preservation legislation style of preservation attaching litigation or arbitration and the mixed provisions of property and act preservation, maritime injunction cannot be characterized as act preservation, which not attach to litigation or arbitration. On the analysis of the nature of maritime injunction and the function of the injunction system in British, this paper holds the points that maritime injunction is similar to the injunction system in British, in particular with the similar nature of the injunctions not attaching litigation or arbitration. The law provides maritime injunction’s applicable conditions, basic procedure, guarantees, execution etc. After continuous judicial practice, these provisions reflect the need to be improved. Statutory conditions of maritime injunction. The application of maritime injunction meets its statutory requirements as a precondition, however, the law does not stipulate how to apply its conditions, and neither does interpretations of the Supreme Court. In judicial practice, the standards can only be judged by the court, depending on the case, and it inevitably results in the abuse of discretion and non-uniform application of law. Based on the cases, this paper analyzes the statutory conditions, concluding that the law should define the specific request of application, the ranges of correcting violations and breach of contracts. Procedural rules safeguard the implementation of substantive rights. The law designs a relatively complete maritime injunction procedure to ensure the proper implementation of maritime injunction. These provisions are the basis of our research procedural issues. Based on the provisions and cases, this paper argued the practical requirements and issues in the current procedural aspects of application and review, determination and execution, guarantee, and responsibilities of wrong application. This paper analyzes the feasibility assessment of maritime injunction, notes enforceable assessment which includes execution basis, methods and results, and points out that the court should assess the implementation at the time of granting maritime injunction. An issued maritime injunction should be implemented immediately according to the general provisions; however, there should be corresponding adjustment if immediately implement being blocked due to subjective or objective reasons. Execution methods of maritime injunction are differences due to the specific requests of each case. This paper mainly analyzes four kinds of execution, including forced return of the ship, forced to deliver the goods, forced issue of the bill of lading, and forced performance of the contract. Based on the analysis of the property, conditions, procedure arid execution of maritime injunction in the earlier chapters, this paper takes the overall system thinking of improving the system. The paper suggests that it should define its applicable scope of objects, should control its application, and perfects some provisions, including hearing system, taking a suit or applying arbitration, and return of guarantee.Finally, this paper carried out an extension of maritime injunction research, which is the establishment of civil injunction in China procedural law. As the constant improvement of maritime injunction, the system will become a maritime injunction which is more like injunction in British law, but only can apply to maritime areas. The applicable scope and function of injunctions in British law is much larger than this. Such systems are also needed in some specific areas in China, such as the stop and exclusion of the destruction behavior in environmental area. In the circumstances of behavior preservation is not thorough and the law is not perfect, this paper proposes the establishment of civil injunction system in China procedural law, which is basis on the on the systems of maritime injunction, drawing the functions of the injunction in British law, and considering the practical needs of solving conflicts. As the supplement of behavior preservation, it applies to specific areas and specific stages.