造船合同签订与履行中的风险防范与法律对策研究

发布时间：2018-02-14 23:29

本文关键词： 造船合同履行风险对策　出处：《华东政法大学》2011年硕士论文　论文类型：学位论文

【摘要】：2002年来,随着世界船市的持续繁荣,中国已经成为世界造船大国。但是目前国内船厂的经营部门在造船合同的签订和履行中,由于种种原因,往往过于迁就船东,对于船东提出的种种增加船厂额外合同义务的要求往往不加甄别的全盘接受,在合同的执行过程中也常常因为疏忽大意丧失掉合理主张自身权益的机会。而随着2008年10月来船市的大幅下挫,船东为了自身的利益便开始频繁在业已签订(及履行)的船舶合同中寻找卖方违约的种种可能,以期能够宣告(或威胁宣告)合同终止,并意图通过此举或甩掉市场高位时签订的合同、或向船厂提出大幅降价的要求,因此而产生的合同纠纷数量暴增。由于船舶建造合同的特殊性(条款及格式复杂、参与方较多、执行时间长、纠纷金额较高等等),某个小细节的疏忽常常会带来较大的时间损失及经济损失。本人从2004年来一直从事船舶出口的谈判、商务文件的缮制和船厂合同履行的监督工作,本文中针对造船合同签订和履行中船厂容易忽视的并且往往会加重船厂义务或是减轻船东义务的风险点进行了梳理和分析,丙进一步提出可能的应对措施,同时结合实际案例和判决结果来具体论证这些风险点的重要性。也希望本文能为船厂经营部门提供一些经验教训和提醒,尽可能重视并提高在合同的签订和履行中的风险防范意识和风险识别能力,从而更好地保护中方利益,避免船厂不必要的支出,体现经营工作的价值所在。
[Abstract]:Since 2002, with the continued prosperity of the world ship market, China has become a big shipbuilding country in the world. However, at present, the management departments of domestic shipyards, in signing and carrying out shipbuilding contracts, are often too accommodating to shipowners because of various reasons. The shipowners' demands to increase the additional contractual obligations of the shipyards are often accepted in full without screening, During the execution of the contract, the opportunity to claim one's rights and interests was often lost because of carelessness. And with the sharp decline in the ship market since October 2008, The shipowner, for his own benefit, began frequently to search for the possibilities of seller's breach of contract in the vessel contract which had been signed (and performed), in order to be able to declare (or threaten to declare) the termination of the contract, And it is intended that the number of contract disputes arising as a result of this move or the contract signed when the market is high, or the request for a substantial reduction in price to the shipyard, will increase dramatically. Because of the particularity of the shipbuilding contract (the terms and format are complex, there are more parties involved, The execution time is long, the dispute amount is high and so on. The negligence of a small detail will often lead to great time loss and economic loss. I have been engaged in the negotiation of ship export since 2004. The preparation of commercial documents and the supervision of the implementation of shipyard contracts are analyzed in this paper, which are easily neglected by shipyards in the process of signing and performing shipbuilding contracts and tend to aggravate shipyard obligations or mitigate the risks of shipowners' obligations. C further put forward possible countermeasures, and at the same time, specifically demonstrate the importance of these risk points in combination with actual cases and judgment results. I also hope this article can provide some lessons and reminders for shipyard management departments. In order to protect the interests of the Chinese side, avoid unnecessary expenses of the shipyard, and reflect the value of the management work, we should pay more attention to and improve the awareness of risk prevention and risk identification in the signing and implementation of the contract as well as the ability to better protect the interests of the Chinese side.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D997.1;D996.19;F426.474

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