论海法

On sea law

古海法和中世纪海法是调整航海贸易中发生的民事、行政、刑事关系的习惯法。自体性是海法最为本质的特征,其根基在于海法渊源上的习惯起源性和内容上的规范关联性,决定因素是海洋环境的特殊性和海上活动的共通性。近代大陆法系国家将海法肢解纳入陆上各法律门类,导致理论和实践的缺位与误解。英美法系国家则通过以判例法为核心的法律体系的构建,辅以衡平法,有效地维系了海法的自体性特征,促进了国际海事法律的发展。当代海法自成独立体系具备自发秩序的理论基础,符合其超越陆法与国内法约束的系统特性,是中国在"海洋世纪"推进功能立法的战略需求。新时代背景下,中国海法迫切需要创新。创新路径首先是立法创新,通过立法技术和立法组织方式创新促进海法独立体系的构建,以体系化的海法规范全面彰显海洋权益;其次是司法创新,扩大海事法院管辖范围,逐步实行"三审合一",设立高级海事法院;最后是创建独立的海法学学科,培养面向海洋的复合型法律人才。

Ancient sea law and medieval sea law were the customary laws that adjusted civil,administrative and criminal relations in navigational trade. Autology is the most essential characteristic of sea law that originated from its characteristic of customary law and determined by the specificities of ocean environment and the intercommunity of maritime activities. In modern times,continental law countries had divided the sea law into different branches and incorporated them into various legal categories,leading to a large number of vacancies and misunderstandings in both theory and practice. Common law countries,on the other hand,had upheld the autology of sea law by confirming the central role of case law in the legal system and complementing it with equity law,thus promoting the development of international sea law. The contemporary sea law,with its independent system and theoretical basis of ＂endogenous order＂that conforms to the systematic features of transcending＂land law＂and domestic law,has become the strategic demand of China in promoting the functional legislation in the＂Ocean Century＂. Against the background of the new era,China urgently needs to make innovations on the sea law,which should start with legislative innovation. The first step it should take is to promote the construction of an independent system of sea law through the reform of legislative technique and legislative organization and give prominence to ocean rights and interests through the systematization of sea law. The next step should be judicial innovation,which means expanding the jurisdiction of maritime courts,establishing the＂three in one＂mode of trial,and setting up the higher maritime court. The last step is to establish an independent discipline of sea law and train inter-disciplinary maritime talents accordingly.