错误扣船归责比较研究

A Comparative Study of Liabilities for Wrongful Arrest of Ship

错误扣船存在广义与狭义之分。各国对于错误扣船一般适用过错责任原则,但各国适用的归责规则差别较大;大陆法系国家主要坚持客观归责,根据事后实体裁决的不利结果,追究扣船申请人其先扣船行为的错扣责任;英美法系国家主要坚持主观归责,仅要求滥用扣船权利的扣船申请人承担错扣责任;我国有关错误扣船责任的立法及司法实践反映了客观归责的要求,但面临着许多理论和实践困难,应予修改,以便建立船舶扣押诚信机制。

Wrongful arrest of ship may be interpreted in a narrow sense as well as a broad sense. The fault-based liability principle usually applies to wrongful arrest of ship worldwide, but the rule of imposition of liability varies greatly in different countries. Most of the civil law countries impose liability objectively, i.e. to impose liability, in accordance with the unfavorable effects of the decision on the merits after the fact, on the person who had wrongfully arrested the ship before he applied for the arrest; while most of the common-law countries impose liability subjectively, only imposing liability on the applicant of the arrest who abused the arrest of ship. In China, the legislation and judicial practice concerning wrongful arrest of ship partake of objective imposition of liability, which, however, have lots of logic as well as practical problems and thus should be improved so as to ensure the establishment of a bona rides mechanism of arrest of ship.