| The fundamental principle of law always is a problem that must be in face of and be discussed. In civil law, there are kinds of definition and physical varieties about it. Especially in maritime law, the fundamental principle is absent in domestic research. If a judge need apply the correct rules of law, or interpret it deeply, he must borrow its sprit from civil law. To some extent, it dissolves the actual problems, but we do not think it is very proper in theory of law. Therefore, the author decides to use economic, philosophy and legal positive measures to demonstrate the maritime fundamental principle from the differences of maritime law and other branch laws, then, concludes several maritime fundamental principles, moreover, still analyses the cause of how it to be formed.In view of the above mentioned facts, the paper is divided into five parts. The first part reveals the main characters of the maritime fundamental principle and distinction between the principle and other legal fundamental principles. The second part analyses the benefits of prescribing the principles into the maritime law. The third part analyses the principles from legal philosophy, then concludes that it is tight relationship between maritime fundamental principles and the contemporary change of the sprit of legal philosophy. The forth part simply discusses the defect of legislative functional mode of maritime fundamental principles and improving methods. The fifth part probes into the cause of the form of the several maritime fundamental principles.The author thinks the utmost good faith doctrine has developed into the fundamental principles of the overall maritime law from the fundamental principles of maritime insurance law, and given a further analysis about it in maritime law. In the meantime, imperfect liabilities for negligence principle which is regarded as the fundamental principle undertook by the carrier of carriage contract also tends to extend to maritime law; what's important, as thefundamental principles of branch law, maybe there are several different doctrines of liability fixation in the same law, but in our words of the fundamental principles of maritime law, we mean the most important doctrine of liability fixation. If it breaks away from the premise, we can't draw a hasty conclusion that the fundamental principles of maritime law contain imperfect liabilities for negligence. Moreover, in maritime law, it not only accords to the equal in status and interests of litigant strictly, and also emphasizes equity very much. There are two reasons about it, on the one hand, the equity ideology has gone deep into maritime law since it originated from Britain; on the other hand, the judges embody their subjective initiative the best in judge because maritime law has the international character that other branch laws can't compare with. Therefore, adjudicating equal can't be avoided, and it is of advantage to the smooth circulation of the international civil and commercial matters and the equal interests in each party. Also because maritime law relates to foreign affairs and foreign nationals, its juridical relation is very complicated, so the applicability of its legal applicable law presents open characteristics.This paper involves economics, philosophy and law, the frontier and cross of subjects is the biggest characteristic. The author uses comparative, integrative and positive analysis methods to have a preliminary analysis of the fundamental principles of maritime law, and offers his own opinion. The definition of maritime fundamental principle agrees with the demand and ideal of human being from the formal justice to the material justice, its superiority and advance won't be overstepped by other branch laws in a short time, and also, it can bring far-reaching influence for the other branch laws.WuXu (international economic law) Directed by Professor Hongxiu Yao... |
