On The Non-Substantieve Maritime Jurisdiction And Substantive Maritime Jurisdiction

At the Jurisdiction of Preservation of Maritime Claims, this thesis studies the actual application and relationship of Non-substantive Jurisdiction and Substantive Jurisdiction of maritime jurisdiction system and the effects of Forum Non-Convenience Doctrine to Non-substantive Jurisdiction and Substantive Jurisdiction, by taking the analysis of Non-substantive Jurisdiction and Substantive Jurisdiction as the breaking point. And this thesis makes reasonable suggestion to consummate the maritime jurisdiction of Special Maritime Procedure Law of the Peoples Republic of China, which is to introduce the legal system of Non-substantive Jurisdiction and Substantive Jurisdiction into the maritime jurisdiction system of Special Maritime Procedure Law.By summarizing the thesis, following issues are studied:Chapter one studies the legal system of Non-substantive Jurisdiction and Substantive Jurisdiction. Non-substantive Jurisdiction includes the jurisdiction of the property preservation measure, recognition and enforcement and other temporary measures. Substantive Jurisdiction includes the jurisdiction of trials of substantive contents. The Non-substantive Jurisdiction and Substantive Jurisdiction are correspondent, which can be changed into each other.Chapter two studies the relationship of Non-substantive Jurisdiction and Substantive Jurisdiction of Preservation of Maritime Claims. This thesis holds the idea that the necessary partition of Non-substantive Jurisdiction and Substantive Jurisdiction must be during the time when the property preservation measures, other temporary measures and recognition and enforcement of foreign courts are put in force, among which the partition because of property preservation takes up more. The submission of Non-substantive Jurisdiction and Substantive Jurisdiction makes up the shortages of the Special Maritime Procedure Law. Judging from a wide range of view, the submission summarizes every issue of jurisdiction and abstract two concepts: Non-substantive Jurisdiction and Substantive Jurisdiction. In Special Maritime Procedure Law, the two concepts appear that Non-substantive Jurisdiction includes the jurisdiction because of property preservation, maritime injunction, evidence preservation and recognition and enforcement of foreign courts. Except above issues, the other jurisdiction constitutes the Substantive Jurisdiction. Preservation of maritime claims is a proprietary system of the Special Maritime Procedure Law of the Peoples Republic of China, of which the arrest of ship system is the most important rule. According to different time, ship arrest can divide into arrest of ship prior to action and arrest of ship during action. And in reference to different time, the relationship of Non-substantive Jurisdiction and Substantive Jurisdiction appears differently. Toward arrest of ship prior to action, China objects the substantive court obtains the substantive jurisdiction by performing non-substantive jurisdiction. But this thesis suggests that the court should be endowed the substantive jurisdiction through performing non- substantive jurisdiction. Toward arrest of ship in action, traditional idea considers that arrest of ship during action and arrest of ship prior to action should be bound together constantly. But this thesis suggests that China court should not deny the right of arresting ship of foreign court.Chapter three studied the influence of Forum Non-Convenience Doctrine to the jurisdiction of Preservation of maritime claims. Forum Non-Convenience Doctrine includes the abandon or release of substantive jurisdiction because of non-convenience of litigant and evidence obtaining from the substantive court. Before the Forum Non-Convenience Doctrine, the non-substantive court can obtain the substantive jurisdiction by taking property preservation prior to action, which does not happen during property preservation in action. After the Forum Non-Convenience Doctrine appears, the above situation changes. Forum Non-Convenience Doctrine originates from the Most Significant Relationship Theory and restricts forum shopping of accuser by using"the most significant relationship". Forum Non-Convenience Doctrine has two important functions: settling down the positive conflict and preventing forum shopping of accuser。On one hand, Forum Non-Convenience Doctrine can restrict the transformation from non-substantive jurisdiction to substantive jurisdiction during property preservation prior to action ; On the other hand, it can empower court to give up substantive jurisdiction when find something non-convenience to court or litigants.Chapter four makes reasonable suggestions to consummate the maritime jurisdiction system of China. This thesis suggests introducing the legal system of Non-substantive Jurisdiction and Substantive Jurisdiction and Forum Non-Convenience Doctrine into the jurisdiction system of maritime action, and prepares specific rules for reference.China has joined into the World Trade Organization successfully and great changes come up in our foreign trade order and legal circumstance. In view of the facts, the trial of maritime commerce concerning foreign parties comes into a new era. China maritime jurisdiction is facing a developing intersection in the presence of judicial practice shows more and more complex and theory innovation develops constantly and it goes without saying that we should keep in step with the times and fits ourselves to the desirability of judicial practice in stead of offering no initiative for change. Truly hope this thesis can be a valuable resource for further study and helpful material for judicial practice.