Maritime Procedure Law Research

The Maritime Procedure Law of the People's Republic of China (hereby referred to as the 'MPL') was implemented on 1st July 2000. The implementation of the MPL is regarded as a new milestone in the Chinese Maritime Law system. The newly promulgated MPL has created, for all the maritime claimants and their opponents, an efficient mechanism in solving their disputes and keeping a proper way to the rule of law in this field. It is a successful law although some of the provisions are not matured and need to be revised. China plays an important role in upholding an international maritime justice and will be the center of maritime adjudication within the area of Asia and Pacific.In the influence of the Soviet Union's civil adjudication pattern, the current civil adjudication pattern of our country essentially is a kind of power doctrine pattern. Judge is in the dominant position in the court. The controller and the commander of the entire procedure, and the clients are in the position of passivity. MLP emphasized on the value of clients' managing of their own right, and mirror the new developments of theory researches in the civil procedure law field. The expression in MLP is in the fowling:(1) Preservation of Maritime claims, Maritime injunctions and preservation of evidence only can be undertaken in the application of a maritime claimant; (2) the court have no duty to censor the legality of the interest of above application.Evidence is key for trials. Therefore, the establishment of maritime evidence preservation system is important for trials. Compare with the system of Civil procedure law, MLP is more coincident with the general rule of civil lawsuit. Major expression is in some following aspects:(1) the court is prohibited from granting an preservation in default of an application; (2) the preservation only applicable to evidence of maritime request; (3)it do not be confined to the evidence in lawsuit ,also including that in advance.It is well known that the legal relation of vessel collision is so complex that it is very difficult to investigate. The key to protect the interest of the claimant is stipulating a reasonable proof system. This system including (1) it is the claimant who decide what to appeal to; (2) The claimant has the right of proofing and also undertake the responsibility of proofing failure;(3) ensure the judge is in the just position and can make fair judgment;(4) allowing the claimant debate under the judge's help.Preservation of Maritime claims is no doubt the most important part. The writer elaborates the contents and characters of the preservation of maritime claims. Arrest of ship falls on the main and typical category of the preservation of maritime claims. In the MPL, China has adopted the closed list of claims in theArrest Convention 1999. The so called 'living arrest' is recognized by the MPL. After ordering to preserve a ship, the maritime court may, with the consent of themaritime claimant, allow continued operation of the ship by means of restraining disposition or mortgage of the ship.The maritime injunction was regarded as a new concept when it emerged in the MPL. The injunction , in a sense ,is analogous to the ancillary orders of a Mareva injunction but is more widely resorted to than the latter. The purpose of the injunction is to "prevent the legitimate interest of the claimant from being infringed." Question may arise, such as, is the interest alleged by the claimant "legitimate," and should the court censor the legality of the interest and if so, to what extant. These questions will be referred in the issue.