A Study On The Exercise Of The Right Of Arrest Of Ships

Arrest of ship is included by China's civil property preservation system.Therefore,it also reflects the contradiction between the rights of one party's entity and the right of the other party's due process in the security system itself.Specifically embodied in the wrong arrest.The subject of this paper is the restrictive rule of the relationship between the arrested ship and the maritime security claimant.The goal of setting of the rule is to limit the scope of the ship that can be detained and to avoid wrongful arrest.The maritime claimant refers to the people with the claim right as stipulated in Article 21 of the Special Maritime Procedure Law of the PRC(hereinafter referred to as the “SMPL”),and the maritime debtor refers to the people who have the responsibility to bear the maritime claim preservation measures that maritime claimant filed for.Broadly speaking,the provisions of Chapter III of the SMPL concerning the seizure of ships in the maritime claim preservation are all part of the rules for the exercise of the seizure rights of ships.However,the research focus of this paper mainly focuses on the rules that should be observed by the maritime claimant in the narrow article of the Sea Prosecution Law,which is stipulated in Article 3 of the 1952 and 1999 International Arrest Convention.The Exercise of the Right of Arrest.The maritime claimant's application for the current effective rules on the relationship between the detainable ship and the maritime claimant is mainly the basic principle ofthe civil lawsuit against the people in the civil law system and the common law system.The result of a combination of reasonable cores of litigation.Judging from the origin of the legal system of ship seizure,the rules for the exercise of the ship's seizure right differentiated from the civil customs of the Mediterranean shipping industry to the two major legal systems.the way.The huge difference in the way in which these two types of ship's seizure rights are exercised caused conflicts between the two legal concepts in the exercise of the rules of the ship's seizure rights in international legislation.Although the two major legal systems in the international rules on ship arrest have compromised each other and reached agreement on the form,they have caused substantial inconsistencies and even contradictions in the judicial application of various countries.SMPL is the representative of many contradictions and uncertainties in application.From the content of Article 23 itself,when the maritime claimant applies for arrest,it is required to prove that the maritime claimant and the detained ship have the responsibility of “responsible for maritime claims”,which creates the logic of the maritime proceedings itself.The chaos of the above,the maritime claimant's burden of proof is unclear,which further leads to the deviation of the maritime trial practice activities related to ship seizure from the content of the legal norms.The arrest of the ship is not normal,and the law enforcement scale is difficult to unify.From the point of view of the setting of Article 23,the respondent is “responsible for maritime claims”as one of the conditions for judging the arrestable ship,and in the determination of the liability for tort damage caused by the wrong arrest,resulting in the case Judgment results to presume the adverse impact of the maritime claimant's application for arrestFor this reason,this article is based on the maritime lawsuit special procedure law and related judicial interpretations on the maritime claimant and the detainable ship's law,to explore and improve China's ship seizure system,balance the maritime claimant and the respondent(The relationship of rights and obligations between the parties to the maritime litigation.At the same time,under the principle of "adhering tosea and land pooling and building a maritime power",under the realistic demand of China's rapid development of foreign trade,perfecting China's ship seizure system and improving China's maritime trial work level is to build China's maritime "soft power" "There should be meaning in the title."In addition to the introduction and conclusions,this article is divided into three chapters.The first chapter of this paper starts from the customary law to the formation of statute law and the history of civil preservation mode and object-oriented litigation mode in the development,and analyzes the rules and characteristics of the exercise of ship seizure rights under the two modes.There are many differences in the seizure of ships under the civil preservation procedure and the seizure of ships under the suit of litigation.The most fundamental difference lies in the independence of the civil preservation procedure and the independence of the litigation procedure.The second chapter of this paper focuses on the conflicts and coordination of the rules for the exercise of the ship's seizure rights under the civil preservation procedure and the rules for the exercise of the ship's seizure rights under the object litigation system in international legislation.By querying the relevant legislative materials in the CMI Diplomatic Conference and reading the research results of relevant scholars,combined with the rules and procedures of the ship seizure rights under the two modes introduced and analyzed in Chapter 1,the main concepts in the formulation of international treaties The conflict of rules and the compromise schemes of the two sides have been analyzed in more detail.Later,it also analyzed the changes in the conditions for the exercise of the ship's seizure rights in the 1952 Convention on Arrest of the 1902 Arrest Convention,and further clarified the conditions and restrictions on the ship's seizure rights.In the end,it is concluded that although the conditions for the exercise of international ship arrest rights incorporate the rules of litigation and civil preservation,they are temporary maritime preservation measures in nature.The third chapter of this article turns the eyes of research into the country.China's "Sea Prosecution Law" on Maritime Claims Preservation Theory is the product of the integration of China's "Civil Procedure Law" and relevant international conventions.It is mainly based on the research topic of this paper,so it will focus its research on Article 23 of the SMPL..Therefore,the third chapter firstly reviews the legislation on the exercise rules of the ship's seizure right in the second chapter,and then reviews the legislation on the exercise of the ship's seizure right in China.This regulation has been theoretically analyzed in the problems arising from practice.At the same time,some issues were discussed through relevant cases at home and abroad.In the third section of this chapter,the rules on the problems arising from the above-mentioned practice in China are proposed.In summary,this paper starts with the history and concept of the two rules of the ship's seizure right.Through the analysis of the conflicts between the two kinds of ship seizure rights in international legislation,this paper explores the design concept and legislative purpose of the legislator in the relevant provisions..Finally,the research focuses on the domestic,analyzes and expounds the meaning of the relevant texts of the law on the exercise of the ship's seizure rights and the problems existing in the specific judicial practice,and finally puts forward their own perfect opinions.With a view to the era of economic globalization,legal globalization,convergence and localization,it is expected to further improve China's ship seizure system,serve the maritime judicial practice,and contribute to the construction of the International Maritime Justice Center.