중국의 선박가압류제도에 관한 연구 : 한국법과의 비교를 중심으로

Abstract

China and South Korea have been building a good relationship since the establishment of diplomatic relationship between the two countries in August 24, 1992, when China has started their own reform and openness policies and the world was plunged into the peace and co-operation era through the collapse of Soviet Union. Through the last decade, there were amazing growth of trading volumes, industrial, political and cultural exchanges between the two countries. In 2003, China became the top trading partner of Korea, followed by Japan and USA.

Numerous trading between the two countries made the rapid growth of marine transportation services and increased marine conflicts as well between the clients and the shipping agencies. Therefore, Korean companies had to manage increasing number of maritime claims and ship arresting in Chinese territory, but due to the lack of understanding in the Chinese legal system, they often failed to settle the disputes quickly.

There are three unique features of maritime transportation. it is exposed to natural disasters, it takes long delivery time, and it is typically liquid. Therefore, once a maritime loss takes place, it is very complicated to find out what is behind and who is responsible for the accident,and it takes a lot of time and effort to settle down the dispute.

The provisional ship arrest system, therefore, is justified to settle the dispute appropriately and fairly through which the parties can protect legal rights and prevent the loss expansion. in the provisional ship arrest is a typical and very important way of maintaining a maritime claim and solving maritime disputes in China.

According to the Special Maritime Procedure Law in China, Chinese Maritime Court has the jurisdiction over any maritime disputes occurred in the Chinese territory and the resulting litigation takes place in China. In addition to that, any concerned claim is a maritime one, ships can be provisionally arrested by the law. That is different from Korean legal system on the provisional ship arrest in many ways such as the legal system, the jurisdiction, the concept, the required conditions, the effect and the procedure.

China has not ratified the 1999 International Arrest Convention Treaty, known as an international uniformity in the fields of the provisional ship arrest. But China was the chairman country when the treaty was specified, and they accommodated major issues in the treaty when they enacted the Special Maritime Procedure Law so that they could protect the benefits of domestic shipping industry.

This dissertation is studied on the provisional ship arrest system in China, where the Special Maritime Procedure Law is already established by the code of the civil act procedure. Furthermore, the legal comparison between the Chinese provisional ship arrest procedure and the Korean civil execution law is provided and some legal and policy implications are drawn for the revision of the provisional ship arrest system in Korea.

This dissertation consists of five chapters.

In the first chapter, the purpose, the method and the scope of this research were stated along with an introduction.

In the second chapter, the roots of law and the implications regarding the Chinese provisional ship arrest were provided. After reviewing the Chinese maritime laws and the provisional ship arrest system, I compared the differences in the legal system between China and Korea and proposed policy implications on the Korean provisional ship arrest system.

In the third chapter, the required conditions for the provisional ship arrest in China and the resulting effects were discussed.

In the fourth chapter, the procedure for the provisional ship arrest was studied. Some important issues from the different legal system were discussed and improvement measures were provided.

In the final chapter, the dissertation summary was provided and the legalization for the Korean provisional ship arrest system was suggested as a conclusion for the dissertation.