| In China,when public order such as channel safety and marine environmental protection are actual or potential hazard by virtue of wreck,the court and Maritime Administrative Authority can not solve the legal problems of compulsory wreck removal in accordance with the laws,regulations and rules at present and even bring some problems such as the confusions among judgments of the courts without legal ground.In the event that the legal nature of compulsory wreck removal must be researched at first to solve the problems of compulsory wreck removal,and the contents of the article are as follows:firstly to define the concept of "wreck" and "compulsory removal",secondly to analyze the legal nature of compulsory wreck removal,finally to discuss that different opinions in the practice shall be fixed after the legal nature of compulsory wreck removal are established.According to theorists,the representative points of compulsory wreck removal are as follows:administrative coercive measures,replacing the fulfillment and immediate execution,administrative order,administrative order and administrative coercive measures,administrative enforcement and administrative coercive measures,right of real claim.However,from the perspective of administrative action but not right of real claim,the legal nature of compulsory wreck removal is administrative order and replacing the fulfillment.Where public order such as channel safety and marine environmental protection are actual or potential hazard by virtue of wreck,Maritime Administrative Authority shall order the responsible party to removal wrecks in the limited period that this administrative action belong to administrative order.In the case that the responsible party do not implement administrative order in the limited period,or Maritime Administrative Authority have no time to use administrative order in the emergency,the Maritime Administrative Authority shall appoint a third party to removal wrecks that these two administrative actions belong to replacing the fulfillment.Different opinions in the practice shall be fixed after the legal nature of compulsory wreck removal are established.Firstly,compulsory wreck removal charge is the cost of replacing the fulfillment with two legal natures of public and private laws.Secondly,the responsible party includes shipowner and operator including bareboat charterer,except time charterer,voyage charterer,third party in negligence,cargo owner,insurer.Thirdly,the execution procedure of compulsory wreck removal contains general and immediate parts.Fourthly,the legal relationship is administrative between Maritime Administrative Authority and the responsible party,civil between Maritime Administrative Authority and removal organization and does not exist between removal organization and the responsible party.Fifthly,the parties of compulsory wreck removal have different claims,when different parties sue,different operating rules between administrative and civil procedure are applied. |
