A Study On The Application Of Maritime Law In Judicial Practice In China

The maritime law formulated and developed along with people’s exploration,development and utilization of the ocean aims at facilitating and ensuring the healthy and orderly development of the shipping industry by means of regulating the specific relations arising from maritime transport and those pertaining to ships.China is a power of shipping,trading,ports and seafarers in the world.Compatible with it,China has set up 11 maritime courts as the professional judicial institutions of trying maritime cases for the first instances.China ranks the first in terms of the number of maritime cases heard by courts of law.In 2012,the 18^th National Congress of the CPC proposed the strategy of developing China into an ocean power.In 2013,China put forward the“Belt and Road”initiative.In 219,the 19^th National Congress of the CPC proposed the strategy of developing China into a transportation power.In 2014,the 4^thPlenary Session of the 18th Central Committee of the CPC adopted the Decision of the CPC Central Committee on major issues pertaining to comprehensively promoting governing the country by law and established the basic strategy of governing the country by law to the effect that the law-based governance of the country is the basic mode of governance of China..Maritime law plays an important role in the implementation of the above strategies and initiative.“The life of law lies in its implementation.”Therefore,the implementation of above strategies and initiative requires the application of maritime law to have more important tasks.However,there exist many issues concerning the application of maritime law in both academic studies and judicial practice.The first group of maritime courts in China were set up in 1984,but systematic theory of application of maritime law has not established yet.Compatible with the characteristics of shipping and maritime law,the application of maritime law has the features of being international,professional,uniform and practicable.Consequently,the application of maritime law shares generalities of application and has specific characters.The lack of guidance of systematic theory of application of maritime law,especially the theory compatible with the specific characters of such application,adversely affected the correct play of role in such application and the result of maritime adjudication.By using the research methods of logical analysis,comparative studies,value measurement etc.,this dissertation combines the China’s domestic maritime legislation and maritime judicial practice,analyses the existing issues in the theoretical research and judicial practice of the application of maritime law,and applying the general theory of application of law,pinpoints the specific characters of the application of maritime law as being international,professional,uniform and practical,demonstrates the ideas,rules and methods to be followed in the application of maritime law,in order to fill the vacancy of the theoretical research of the application of maritime law,offers theoretical reference and support for solving these existing issues and for accelerating the realization of the functions of application of maritime law and promotion of the value objectives of maritime law.This dissertation consists of five chapters in addition to the introduction and conclusions.The introduction briefly elaborates the research background,the theological and practical significance,the main research contents,the research status quo and literature overview,and the research methods.Chapter I is“Ideas of application of maritime law”.The issue of ideas of application of maritime law is the first issue to be set up in the theoretical research on the application of maritime law.This Chapter aims at analyzing the existing issues in theoretical research and judicial practice and elaborating the necessity of research of the application of maritime law.Based on analyzing of the theoretic debates on the ideas of the application of law and the characteristic of the application of maritime law,this Chapter demonstrates the ideas to be followed in the application of maritime law in China.The ideas of the application of maritime law is to correctly deal with the relations between the generality and universality of statutory laws on one hand and the complicated varieties and specificities of specific individual cases on the other,and to coordinate the relations between the stability and predictability of maritime law and appropriateness of results of judgements,so as to fairly solve the maritime disputes and realize the values of maritime law.The ideas of application of maritime law shall seek the legality and legitimacy of the results of judgements,and shall first satisfy the requirements of legality.When exercising the discretion to make a breakthrough on legal norms in order to realize the justice in individual cases,the judges shall bear the demonstration obligations to justify the value measurement and judgment made in compliance with the value objectives and specific value measurement of maritime law.Chapter II is“Application of maritime law:path of realizing the values of maritime law”.The values of maritime law are pluralistic and forms a system of values.Therefore,the relations between maritime law and its application is an important issue in the theoretical research of application of maritime law.This Chapter aims at clarifying the function of the application of maritime law on realizing the value objectives of maritime law,improving the functions of form value of maritime aw,demonstrating that the value measurement and judgment contained in the maritime law is the inherent logic foundation of the application of maritime law.The values of law are a core issue of legal research.The values of maritime law is the ideals and purposes which are expected and protected by maritime law in the process of regulating the specific ship relations arising from maritime transport and those pertaining to ships,expressed or contained in the maritime legal norms,and the maritime legal norm have in satisfying the demand the people seek.The special formulation and evolution background of the maritime law and the maritime legal systems and rules formed in practice manifest the value objectives expected and pursued by maritime law.This Chapter focuses on how to make specific value evaluation and judgment of maritime law in juridical practice and how to realize the value objectives of maritime law through application of maritime law.Chapter III is“General rule of the application of maritime law”.Maritime law mainly regulates the specific relations arising from maritime transport or other activities pertaining to ships between or among persons of equal status and therefore has the attribute of special law as compared with civil law.Consequently,how to correctly apply the rule of special law with priority over general law proves to be one of the most arguable and popular issues in the application of maritime law and is an issue to be solve in the theoretical research of application of maritime law.This Chapter aims at analyzing the characteristics of maritime law,and on the basis of maritime law as a special department of law as compared with the department of civil law,demonstrating the application of the Chinese Maritime Code shall obey the rule of special law with priority over general law.In terms of the application of law,the sources of maritime law refer to the sources of norms or criteria which are recognized to have the effect,authority or legal meaning of laws and serve as the basis for judges to hear a case,and are the authoritative reason to support and justify the legal judgment and conclusions made by the judges in specific cases.Maritime law has special background,evolution venation,value objectives and basic principles which are different form civil laws.However,the nature of social relations regulated by maritime law are covered by civil law,and they have the same regulating methods.The application of maritime law shall be based on and supported by the basic concepts and theoretical system of civil law.Therefore,maritime law is a special law of civil law in the system of laws in China.The application of the maritime law shall follow the general rule of application of law,namely,special law has priority over general law to the effect that where the Maritime Code doesn’t contain any provision,the general provision of civil law shall be applied.Chapter IV is“Special rules of application of maritime law”.The sources of maritime law are pluralistic and,besides domestic maritime legislation,include international maritime treaties,international shipping customs,maritime judicial interpretations and maritime judicial precedents.In addition,compatible with the international characteristics of shipping,international maritime treaties have special significance.Consequently,the theoretical research of application of maritime law needs to emphasize the application of international maritime treaties,international shipping customs,maritime judicial interpretations and maritime judicial precedents.This Chapter analyses the application of international maritime treaties,international shipping customs,maritime judicial interpretations and maritime judicial precedents and takes it as special rule of the application of maritime law.In determining whether an international maritime treaty can be applied in the non-foreign-related maritime relations,due consideration shall be taken of the nature,contents,scope of application of the treaty and the intention of China’s ratification or accession without prejudice to China’s public interest and basic legal principles.As a general rules,the application of an international maritime customs shall be applied based on the principle of autonomy or as supplementary regulation in the absence of domestic law and applicable international treaties.The international maritime customs as the sources of law in the foreign-related maritime relations can only apply to the non-foreign-related maritime relations where they are coincidence with the customs of civil law.Maritime judicial precedents have the functions of guidance and reference in the application of maritime law with factual binding effect.The guiding precedents shall be referred to in the reasons of judgements in the same or similar cases,whereas the precedents published in the Bulletin of the Supreme People’s Court and the ten annual maritime cases have different functions of guidance or reference in the application of maritime law.Chapter V is“Loopholes-filling and interpretation of law in the application of maritime law”.Due to the strong practicality of shipping and the frequent changes and development thereof,maritime legislation is unable to meet such changes and development and displays hysteresis.In addition,the Maritime Code of China has not been revised for nearly 28 years since its adoption.Thus,there exist loopholes and uncertain provisions in legal regimes and rules.Consequently,how to determine the methods and rules of application for the loophole-filling and interpretation of law in the application of maritime law is an important issue in the theoretical research of application of maritime law and is the focus in this Chapter.Due to the inherent conflict between the hysteresis and ossification of law and continuous development of social and economic life,loopholes of law are inevitable and need the judges to fill them in individual cases.Due to the conflict between the generality of law and complexity of social and economic life,a judge needs to interpret the contents and effect of the chosen legal basis and make the judgement on the basis of facts of a particular case to satisfy the legality and legitimacy.The process of application of maritime law also embodies loopholes-filling and interpretation of law.However,such loopholes-filling and interpretation of law is not simple sheath the general method in the theory of jurisprudence to the maritime law.The practical nature and the characteristics of internationality,expertise and uniformity of maritime law determines that the loopholes-filling and interpretation in application of maritime law shall be based on considering the evolution background of maritime law,the legislation status and the shipping practice,maintaining the system integrity and logical autonomy on the special value evaluation and judgement in maritime law.The conclusions generalizes the main concluding opinions of the dissertation.