The Marine Injunction System Analysis And Improvement

The Special Maritime Procedure Law of the People's Republic of China ("the MPL"), adopted at the 13th Meeting of the Standing Committee of the Ninth National People's Congress on 25 December 1999, is an important piece of legislation in the maritime legal system. Since then, the maritime court has had its own procedure to follow. Due to the involvement of foreign elements, the MPL introduced some foreign legal systems, among which the highlighted one is the system of maritime injunction. As the maritime injunction is a unique system and the period is relatively short as from the implementation of MPL, the research among the academics is very limited in this field, and some problems to be urgently solved have arisen in the judicial practice. As a judge in the maritime court, the author will from the perspective of judicial practice analyze system of maritime injunction, and present his own opinions on the improvement of the legislation and the puzzled issues in the judicial practice.This article consists of the following five chapters:Chapter One: to analyze the meaning and characteristics of maritime injunction. By analyzing the similarity and difference between maritime injunction and preservation, the author criticizes the theory that the maritime injunction is in essence the preservation, and further comes to the conclusion that the maritime injunction possesses certain function of preservation, while it is not a preservation measure. Maritime injunction is a new compulsory measure, whose target is the act/conduct itself (rather than the preservation of such act). Maritime injunction has its own procedure to follow and the conditions for its application are much stricter.Chapter Two: to discuss the source of maritime injunction. The author analyzes the source and characteristic of Mareva Injunction in common law system and the mesure conservatoire in civil law system (which are similar to that of maritime injunction), and describe the differences between maritime injunction and the said two systems.Chapter Three: to analyze the three conditions stipulated in MPL before the maritime injunction can be granted. By analyzing the definition of maritime claim given in the international law, Chinese law and the academics, the author puts forward his opinions on the definition of maritime claim. The author further analyzes the situations where the maritime injunction is granted (namely violation of legal provisions, breach of contract, and the anticipatory breach), and defines the emergency.Chapter Four: to analyze the current situation and problems existing in the judicial practice of maritime injunction. Research and analysis is made into the maritime injunction cases entertained by the maritime courts after the implementation of MPL and its characteristics, and great emphasis is laid on the problems in the design of this system and the difficult issues encountered in the judicial practice (such as the jurisdiction, procedural or substantive examination, amount and return of counter security, reconsideration/objection and enforcement of maritime injunction).Chapter Five: to discuss and propose how to improve and perfect the system of maritime injunction and solve the practical issues. Great emphasis is put on how to impose a strict examination on the scope of its application, the examination and return of counter security. The author proposes to set up a system to hear the argument of both parties and to allow the applicant to withdraw the maritime injunction, and summarize the improvement of the enforcement measures.