| Taking the liability for wrongful arrest as the theme,the concept and nature of wrongful arrest,the imputation principle of compensation for wrongful arrest,the subject of the liability relationship for wrongful arrest and the scope of wrongful arrest liability as the research content.Using normative research methods,empirical research methods and comparative analysis methods,and taking the interests of maritime claimants and the party who opposes the claim or interested party as the value goal,the issue of liability for wrongful arrest of ships is studied systematically and in depth.There is no definition of wrongful arrest in the convention on arrest of ships and in China’s law.The conditions for a maritime claimant to apply for arrest include substantive and formal conditions,on which the concept of wrongful arrest is formed,that is,arrest is carried out without meeting the conditions for arrest under the law.The formation of wrongful arrest means that the maritime claimant does not have the right to arrest the ship,and the wrongful arrest does not meet the constituent elements of abuse of rights.Instead,it is a tort in nature.The subjects of the liability relationship for wrongful arrest include the subject of the claim and the subject of compensation.“Interested party” means a person who has an interest in the arrested vessels.According to China’s judicial practice,in the event that the infringer intentionally infringes the creditor’s rights,the infringer shall bear tort liability.In the case of intent on the part of the maritime claimant,a person with a creditor relationship with the requested person may claim liability for wrongful arrest of the ships.Under the principle of self-responsibility,the subject of compensation for wrongful arrest of ships is first of all the infringer,that is,the maritime claimant.In the case where a third party provides security for the maritime claimant’s application for arrest,the subject of compensation for the wrongful arrest liability relationship is extended to the person providing such security.The arrest conventions leave the issue of liability for wrongful arrest to the law of the State in which the arrest is made or applied for.Article 20 of the Special Maritime Procedure Law of the People’s Republic of China(hereinafter referred to as “SMPL”)stipulates that the principle of no-fault liability shall be applied to the liability for wrongful arrest of ships.This provision is unreasonable.In China’s judicial practice,both principle of no-fault liability and the principle of fault liability are applied to the liability for wrongful arrest of ships.From the two recent rulings of the Supreme People’s Court of People’s Republic of China,it can be found that judicial adjudication tends to hold that the liability for wrongful arrest of ships won’t be established without the showing of intentional or gross negligence.The imputation principle of wrongful arrest of ships in major countries or regions outside the region is divided into the principle of fault liability and the principle of no-fault liability in general.The “faults”in the principle of fault liability are: ordinary negligence,mala fides and crassa negliagentia or unreasonably and without good cause,and some countries or regions apply the principle of presumption of fault.The principle of fault liability should be applied to the liability for wrongful arrest of ships,and ordinary negligence can constitute “fault”,which can better balance the interests of all parties and is also more in line with legal principles.The three types of losses listed in the Interpretation of the Supreme People’s Court on the Application of the Special Maritime Procedure Law of the People’s Republic of China(hereinafter referred to as the “Interpretation of SMPL”)cannot cover the actual losses suffered by the party who opposes the claim or interested party as a result of the wrongful arrest of the ships.The closed provisions of the Interpretation of SMPL unreasonably restrict the right of the party who opposes the claim or interested party to obtain compensation,since their losses cannot be fully remedied.The rules that determine the scope of tort liability shall apply to determining the liability for wrongful arrest of ships,including the rule of full compensation,the rule of offsetting of profits and losses,the rule of offsetting of fault and the rule of weighing the interests of all parties.In terms of legislative model,the enumerated provisions of the Interpretation of SMPL may be retained,and at the same time,the model of open-ended provisions should be adopted to include all the actual losses suffered by the party who opposes the claim or interested party into the scope of liability for wrongful arrest,so as to make the scope of liability for wrongful arrest more fair and reasonable. |
