| “Flexible arrest of ships” is a relative concept corresponding to “actual arrest of ships”.Both methods belong to the procedure of arrest of ships,but there are obvious differences in the measures and means.The flexible is different from the actual,which does not physically control the ship within the port or specific location.The flexible allows ships to continue operating by taking such preservation measures as restraint on the disposition of a ship or mortgage of the ship——achieves the "arrest" of the ship on a legal level,not in reality.The flexible is a highly recognized and widely used means of preservation of maritime claim in China’s current judicial practice.However,the number of legal norms directly aimed at the flexible in China is rare.As the time goes,the isolated provisions of the flexible can not meet the change and development of arrest of ships practice,exposing certain limitations and hysteresis.The judicial interpretations successively issued by the Supreme Court and the practical guidelines or guiding opinions on arrest of ship formulated by the maritime courts have supplemented and improved the normative system of the flexible,but new issues of understanding and application have also been derived.Taking the flexible as the research object,combined with the existing theory and practical experience,this thesis aims to clarify the position of the flexible in maritime litigation,and propose some targeted amendments to improve the current system.The article consists of the following six chapters:The first chapter makes a comprehensive exposition of our country’s current system of the flexible from the perspectives of legal concept,comparative characteristics,legal nature and comparative law studies.A comparative study is made on the flexible and the actual,and the advantages and disadvantages of the flexible are shown through the comparison.On this basis,demonstrates that the flexible is property preservation in nature,so as to guide the independent value analysis of the flexible below.Subsequently,this chapter uses the method of comparative analysis to appraise and compare the rules similar to the flexible in Germany,Britain,Chinese Taiwan region,and international conventions.The second chapter discusses the relative independence of the flexible.By sorting out the current regulations,it points out the misunderstanding of the current regulations on the current understanding of the flexible.Through analytical argumentation,it concludes the flexible has relative independence.At the same time,based on the relative independence of the flexible,it proposes to establish an independent concept of "seal up of ships",so as to unify the understanding of the flexible,distinguish the boundary from the actual,and respond to the problems that may be caused by the change of the concept.The third chapter discusses the application of the flexible.The most controversial issues in the practical application of the flexible mainly include the scope of maritime claims,applicable ship types,period of arresting,maritime guarantee,etc.,and analyze the causes of the above problems,and respond in combination with existing regulations and judicial practice experience.The fourth chapter analyzes the compete between the flexible and the actual caused by multiple arrests in practice,interprets the current regulations on multiple arrests,and discusses the causes,manifestations and effects of the conflict of effectiveness between the flexible and the actual,and deduces “actual arrest of ships” cannot limit the conclusion of “flexible arrest of ships” at the time of multiple arrests,and at the same time,it analyzes the maritime security issues involved in multiple arrests.The fifth chapter makes suggestions on the improvement of our country’s law on the flexible.This article provides reference opinions for the revision of the law from two aspects: the overall idea and the specific path.On the basis of clarifying the basic value orientation of the flexible,and with the establishment of the concept of "seal up of ships" as the core,the current "one law,one interpretation and one regulation" is revisited.Sort out,build an independent system of flexible arrest of ships,and give specific legal amendment opinions. |
