선박 및 적하 압류제도에 관한 한ㆍ중 법률 비교 연구

A Comparative Study of Legal Systems of Arrest of Ships or Cargoes under the Korean and Chinese Laws

The article is relating to ships, transport, exploitation of sea or civil or commercial disputes in relative areas, special in nature. The Special Maritime Procedure Law will push the development of Chinese maritime transport and the international trade and economy. In this article I compare Chinese legal system for securing the maritime claims with Special Maritime Procedure Law of the People's Republic of China with Korea Civil Procedure Act as to the arrest of ships and cargoes. Mainly I will say the characteristics of Chinese Law below. First, I discuss the system for arrest of ship prelitigation, mainly about the definition and development of the system of the arrest of ship, the conditions for arrest of ship and its legal consequence. What most distinctive is that the system for arrest of ship recognizes action in rem to some extent. The Special Maritime Procedure Law regulates that "when the maritime claimant apples for arresting the ship involved in the case, it will not affect the application if the claimant cannot make clear the name of the defendant at once." It shows distinctive difference from the traditional attitude of Chinese civil litigation theory, which only recognize action in personal. Second I discuss about the legal system for detainment of cargo on board. Among it what needs emphasize is that only cargoes owned by the claim are detainable and the value of the cargoes detained should amount to the value of claims. Otherwise, the claimant is liable to the legal consequence arising from his misrepresentation. Lastly, I point out some shortcomings of Special Maritime Procedure Law as to comparisons with Korean law.