Font Size: a A A

Study On Several Problems Within Arrest Of Ship

Posted on:2009-03-21Degree:MasterType:Thesis
Country:ChinaCandidate:H L HeFull Text:PDF
GTID:2166360242987929Subject:Law
Abstract/Summary:PDF Full Text Request
Arrest of ship, as an important procedure to solve maritime disputes, is greatly concerned by the shipping and law fields at home and abroad, which provides essential evidences for courts to get jurisdiction as well as reliable security for the claimers. The legal system of ship arrest rules is at the forefront area and occupies an important status in the maritime procedure law, which makes the research of ship arrest have both theoretical and practical meanings as well.In Middle Ages, arrest of ships has already appeared in Europe, then it was seen as Property Protection Action in Civil Law System, but it developed into Action in Rem in Common Law System. Systems of arresting of the ship seem to be identical in various countries, since the two basic functions of it have been widely accepted by international conventions and civil legislations. However, the real case is not like that, because there is a huge historical difference between the two major legal systems in their operation bases and recognition of the ship-arrest theory, and international conventions only united the two systems in forms and procedures, consequently, conflicts occur unavoidably in the application of the system.China is a big shipping country, but it has not been a long time since this special maritime judicial system originated and then developed. Although the theoretical study on the arrest of ship in our country is still not perfect, the legislation practice on this system has never stopped. On legislation, based on our legal tradition and shipping practice, we care, refer to and learn from the latest international legislative and study fruits, and created a relatively complete system of arrest of ship, which meets development of Chinese shipping industry, and takes an important part in solving related maritime disputes.Basing on the ship-arrest related provisions in Special Maritime Procedure Law of the Peoples Republic of China, referring to the latest development of international conventions and foreign legislations, combining with the maritime practice and marine litigation in China, this paper deeply discusses the ship arrest rules comprehensively by using historical analysis, the overall analysis, case studies and comparative analysis methods, and put forward several ideas, hopping they are beneficial to the perfection of the ship arrest rules in China.This thesis contains four chapters.In chapter 1, the writer makes a thorough analysis of different views of ship arrest rules at home and abroad, with an emphasis on differences as to arrest of ship rules in common law system and civil law system, discusses the concept and significance of ship arrest rules, and finally, makes a brief summing-up of the characteristics and development of the ship arrest rules in China.In chapter 2, the writer expounds the conditions of ship arrest from the angles of its essence and forms, and specially emphases on the scope of the ships that can be arrested. Then in the study of the methods of arrest of ship, the writer divides the methods into two kinds:"live arrest"and "dead arrest", repeated arrest of ship and re-arrest of the same ship. In this part, the writer concludes, analyzes and summarizes these disputes and problems, and reflects on the practice and legislations in China.Chapter 3 is about the security and counter-security in the procedure of ship arrest. In this part, the writer firstly makes a brief summarize of the characteristics and methods of maritime security, and then separately studies on the reasons, differences, and amount of the security and counter-security in the procedure of ship arrest.The last chapter talks about the wrongful arrest of ship. At first, this part illustrates the views about wrongful arrest of ship at home and abroad, defines the nature of wrongful arrest of ship, and then analyzes several behaviors of wrongful arrest of ship in practice, clears the belongings and the scope of duty, finally, the writer discusses some measures to keep away from the wrongful arrest of ship and how to relieve when the wrongful arrest of ship happens.In a word, the ship arrest rules in China refers to the foreign successful experience and international conventions, generally speaking, it is relatively advanced, but the digest and localization are very important in the process of the transplantation of law, there are still many problems in practice waiting for us to study.
Keywords/Search Tags:arrest of ship, the scope of arrest, the methods of arrest, maritime security, wrongful arrest
PDF Full Text Request
Related items