Research On Legal Issues Of The "Flexible Arrest Of Ship" In China

"Flexible arrest of ship" system,dating back to Article 101 of the "Opinions of the Supreme People's Court on Certain Issues Concerning the Application of the Civil Procedure Law of the People's Republic of China" in 1992(repealed),was established in the "Special Maritime Procedure Law of the People's Republic of China" in 1999 and the "Interpretation of the Supreme People's Court on Certain Issues Concerning the Application of the Special Maritime Procedure Law of the People's Republic of China" in 2003.Subsequently,on basis of the provisions above,"Provisions of the Supreme People's Court on Several Issues concerning the Application of Law to the Arrest and Auction of Vessels" in 2015 made further promotion.During the practice of more than twenty years,"flexible arrest of ship" system has been proved to play a vital role as maritime preservation measure.However,no one is perfect,and without any exception,"flexible arrest of ship" system also leads to many practical controversies.Confusion on applying "flexible arrest of ship" springs from both the conflicts between the provisions of the "Civil Procedure Law" and"Maritime Procedure Law",and several inevitable defects inherent in itself.This paper analyzes the legal problems arising from the "flexible arrest of ship" system upon theory and case discussion,and offers some valuable suggestions.This article is divided into four parts except the introduction and conclusion.The first part briefly introduces "flexible arrest of the ship" system on its legal sources and value and clarify the definition of the "flexible arrest of ship" within this paper via comparative analysis among the relevant provisions of international conventions and domestic law of Japan and Taiwan.The second part is to elaborate and analyze the preconditions for applying"flexible arrest of ship" from both theoretical and empirical perspective,including the definition of the "ship",claims and duration.The third part mainly concerns the guarantee under "flexible arrest of ship".Since the "Maritime Procedure Law" and "Civil Procedure Law" differs on guarantee issues and there is no clear provision concerning the "flexible arrest of ship",this paper tries to demonstrate the necessity of "flexible arrest of the ship",as well as suggests on the provisions of the amount for security.The fourth part is on the issues and effects of "flexible arrest" and arrest of ship when applying to the same case.Upon cases,the conflicts get confirmed and this paper presents further views on such issue.The fifth party proposes improving suggestions on the constitution of the system and specific provisions in China.