Openness and Inclusiveness: Nature of Chinese Maritime Law and Legal Practices

• Author: Hong Jun Shan - Yun Liang
• Position: Professor in Law of Dalian Maritime University Law School - PhD Candidate in Law of Dalian Maritime University Law School
• Pages: 107-113

(2016) 30 ANZ Mar LJ

107

OPENNESS AND INCLUSIVENESS: NATURE OF CHINESE MARITIME LAW

AND LEGAL PRACTICES

Dr Shan Ho ng Jun* Liang Yun**

1 Intro duction

The concept of “Chinese maritime law” in this article does not refer to a par ticular law o r act. Instead, it refers to

the legal system consisting of all spec ific Chinese laws and regulations wit h a maritime and admiralty flavor,

which include ad mi nistrati ve regulations, administrative rules and international treaties joined or acceded to by

China.

Chinese maritime la w is well known for being international and advanced, as compared with other branches of

Chinese law. These extraordinary characteristics are borne in its nature o f openness and inclusiveness. In a broad

sense there is no clear distinction between the “openness” and “inc lusive ness” referred to in t his article. In this

context both words jointly refer to being open to and inclusive of international ideas and precedents. For example,

the use of the 1989 Salvage Convention and the 1994 York-Antwerp Rules as the basis for Chapters 9 and 10 of

China’s Maritime Code, and, sometimes, when adjudicating a case, the co urt’s being open to international ideas

and precedents.

However, in a narrow sense, this international openness provides Chinese mariti me law with a wide range of

sources of la w and a variety of mature legal models for selection. Inclusiveness helps Chinese maritime law to

embrace various legal institutions and incorporate legal ideas of a diverse nature in an amicable way. Inclusiveness

is premised on openness, which can be seen from the provisions of Chinese maritime law and aspects of maritime

litigation. Openness is grounded on inclusiveness which allows legal institutions “shipped” from overseas to root

and sprout in the soil of Chinese laws, and to mellow their fruit in the admiralty litigation of China.

The main purpose of this article is to provide some insights into the nature of Chinese maritime law and give a

general picture of maritime legal practices in China for the benefit o f international scholars and experts who are

interested in Chinese maritime law and legal practices.

2 Overvie w of Chinese Maritime Law

2.1 Connotation/Inte nsion of Chinese Maritime Law

In the Chinese la nguage, “mariti me law” refers to all of the legal norms which regulate the specific social relations

arising from maritime transport and those pertaining to ships. 1 Similar to the situation in English where the word

of “maritime” has various different meanings, Chinese maritime la w covers both maritime law in a broad sense

and maritime law in a narrow sense. 2 Maritime law in a narrow sense refers to the Maritime Commercial La w,

being a kind of commercial la w whose regulatory object is maritime commerce.3 The Chinese Maritime Code,

which came into force as from 1 July 1993 (hereinafter refer red to as ‘CMC’), is maritime law in this narrow

sense, and governs the civil relations in maritime transport and those per taining to ships as a special civil law.4

Maritime law in a broad sense governs maritime administrat ive re lations and maritime criminal relations between

unequal subjects as well as maritime commercial relations between equal subjects. Maritime law in a broad sense

involves port laws, ship inspection laws, crew la ws and maritime environmental protection laws, etc.5 No matter

how wide the scope of maritime law in the broad sense extends, however, the social relations arising from

maritime transport and those pertaining to ships are the central relations which it governs. 6

[This paper is under the support of the Social Science Fund of Liaoning Province (Project No.: L13BFX006)].

* Professor in Law of Dalian Maritime University Law School.

** PhD Candidate in Law of Dalian Maritime University La w School.

1 Si Yuzhuo, Maritime Law (Law Press China, 3rd ed, 2012) 2; Guan Xiaoron g, Si Yuzuo and Wu Qi (ed s), Dictionary of International

Economic Law (Dalian Marine College Press, 1993) 873.

2 Si Yuzhuo, Maritime Law (Law Press China, 3rd ed, 2012) 5; Guo Yu, A Course on Maritime Law (Peking University Press, 2nd ed, 2012)

6; Li Tiansheng, ‘A Discussion on the Concept, Regulative Object and Nature of Maritime La w’ (2012) 11(6) Journal of Dalian Maritime

University (Social Science Edition) 48, 52.

3 Zheng Yubo, Maritime Law (San Min Book Co, Lin Qunbi revised 13th ed, 2013) 3.

4 Si Yuzhuo (ed), Maritime Law Dictionary (China Communications Press, 1998) 117.

5 Si Yuzhuo, Maritime Law Monograph (Law Press China, 3rd ed, 2015) 2; Guan Zhengyi, Maritime Legal System From the Perspective of

Civil Law (Law Press China, 2015)18.

6 Guo Yu, A Course on Maritime Law (Peking University Press, 2nd ed, 2012) 6.