Chinese Maritime Injunction, The System Innovation And Improvement Of A Number Of Issues

A maritime injunction means any of compulsory measures by which a maritime court, on application by a maritime claimant, orders an act or omission by the party who opposes the claim, in order to protect the lawful rights and interests of the maritime claimant against any infringement.In order to regulate the actions of interested parties in the maritime proceedings, a new system is established in < Special Maritime Procedure Law of the People's Republic of China> , hereinafter referred to as MPL, pursuant to which a maritime claimant whose legitimate rights are infringed is entitled to file an application for compelling the respondent to act or restraint from action. According to the legislative structure of MPL, maritime injunctions together with preservation of maritime claims and preservation of maritime evidence constitute the preservative system in respect of actions, property and evidence in MPL.Assimilating the abundance of trail practices of Chinese Maritime Courts, the system of maritime injunction is founded and developed, using the common law theory of intermediary injunction, Mareve injunction in particular, together with the civil law theory of temporarily disposal for reference. It shall be useful to deal with some maritime disputes effectively and shortly and is clearly a precaution to avoid infringement before the commencement of legal proceedings or judgments, in case of illegal action and breach of contract. Naturally a maritime injunction belongs to the preservation of act, the object of which is action, not the same as that regulated in civil procedure law, being restricted to property only. It has made great help to the theory of act preservation and the practice as well.It is clear that a maritime injunction will be useful to deal with some maritime dispute effectively and shortly. More and more claimants for the ordering of maritime injunctions are prosecuted, ever since the ordination of MPL, which in turn illuminate its stability of theory foundation and applicability for practical needs.However like any newborn system of theory, a maritime injunction will also easily be confronted with many deficiencies, whatever it is to the system itself, or the cooperation with other correlative systems, or problems encountered in trial practice.For instance, whether we should restrict the release of a maritime injunction; whether the regulation of its legal rights and interests' in Article 51 of MPL shall applied to expecting right as well; when the actor refused to execute the order, will indirect compulsion be effective; How to make full cooperation between a maritime injunction and the other correlative systems, such as maritime security, preservation of maritime claims and preservation of maritime evidence.How to resolve these above mentioned problems to construct a more effective system of maritime injunction has so become an urgent issue that confronted with us. Realizing the essence of the injunction and the necessity of the system, this article tries to make comparison between correlative systems existed already, to get a full and systemic understanding of the system of maritime injunction and its position in Chinese Civil Procedure Law, on top of which to show some opinions and suggestions to several problems so encountered in trial practice already or are yet to come for the perfection of the system.