A Study On Relevant Issues In Disputes Over Claim For Compulsory Clean-up Costs

With respect to compulsory clean-up costs,in the Chinese judicial practice,there usually exist certain key issues in dispute between the parties concerned,such as the legal nature of such costs,the claimant of such costs,the basis for claim for such costs,the legal relationships involved and the reasonableness of such costs.However,there is no clear "legal" provision on such issues under the Chinese law,so different courts made different or even contradictory judgments and it is also a matter of opinion in the theory field.By making research and analysis on 34 selected cases tried by various levels of Chinese courts in respect of claim for compulsory clean-up costs,this paper sorts out the main issues in dispute in this type of cases in the Chinese judicial practice and makes detailed analysis on these issues.On this basis,the author raises his own opinions.This paper consists of four chapters:Chapter 1,based on the research and analysis on 34 selected precedents,summarizes the current situation of claims for compulsory clean-up costs in the Chinese judicial practice,and sorts out the main issues in dispute in the claims for compulsory clean-up costs in the practice.Chapter 2,through a longitudinal review on the changes of relevant Chinese laws and regulations,reveals the developments and changes in the administration modes of the Chinese maritime administrative authority on marine pollutant removal and pollution prevention,and then distinguishes the legal nature of the compulsory clean-up costs incurred under different administration modes(i.e.,an agreement for ship pollution response has been entered into between the ship and the ship pollution response organization("SPRO")in advance or no such an agreement was entered into)and the relevant realization approaches.This paper makes a particular probe into the Chinese judicial practice that most Chinese courts upheld the SPRO's civil claim directly against the responsible party with whom the SPRO did not sign an agreement for ship pollution response,and takes the view that under the legal relationship of administrative substitution performance,there exists no legal relationship between the SPRO who is a third party actually implementing the administrative substitution performance and the obligator(the responsible party),so it is in lack of basis for the SPRO to directly claim against the responsible party for compulsory clean-up costs.Based on the analysis in Chapter 3 on the legal nature and realization approaches of compulsory clean-up costs,Chapter 3 and Chapter 4 make detailed analysis on such issues as whether the compulsory clean-up costs are claims subject to limitation,the scope and standard of compensation for such costs,and whether the claim for such costs is entitled to priority of compensation/maritime liens,and on this basis puts forward the author's own opinions.