国际货运代理人责任保险制度研究

发布时间：2018-07-11 17:02

本文选题：国际货运代理人 + 责任保险　；参考：《华东政法大学》2011年硕士论文

【摘要】：国际货运代理人产生于公元10世纪左右,历史悠久,为贸易和航运建起了联系的纽带;但其高风险、低回报的特点,急需有效的风险防控方式,责任保险正是合适的选择。遗憾的是,国际货运代理人责任保险并未引起足够的重视,在我国难以发挥应有作用,相关理论研究也非常少。本文选择对该保险相关制度进行研究,希望能体现出其重要意义,因此业内对通过制度建设推行该保险实施的思考。本文第一章是对基本问题的阐释,介绍了国际货运代理人的界定和国际货运代理人责任保险的概念特征。传统货代主要作为货主代理,但随着作为契约承运人的业务方式出现,对国际货运代理人的界定出现了狭义和广义的分化,还催生了新的概念——无船承运人。美国采取狭义界定加无船承运人的管理体制。我国对此缺乏法律界定,只有部门规章的体现;界定模式先从传统定义转向广义界定,后又向美国靠拢,但制度改革的不彻底形成了广义界定加无船承运人的独特体制,在某种程度上加剧了概念的混淆。本文认为无船承运人的推出应当配套以狭义的界定模式,故本文所述国际货运代理人特指传统货代。国际货运代理人责任保险以货代为被保险人,以其被依法判定应承担的责任为保险标的,具有标的特殊性、金额有限性、第三人利益性和偿付替代性的特点。本文第二章基于责任保险的基本功能,结合我国建设国际航运中心的目标和货代行业秩序混乱的状况,提出建设我国的货代责任保险制度是必要性;同时认为,我国已经初步具备了该保险推出的基本法律环境和市场依据,而国际市场上也已运作成熟,可以借鉴。本文第三章首先对我国国际货代管理制度总体状况进行评价:第一,对货代问题的基本立法缺失造成货代责任保险制度基础不稳;第二,管理体系的混乱造成货代地位不清责任不明。其次,具体到货代责任保险制度,尽管商务部有所尝试,但尚未有效建立。关于这次尝试,本文认为,其一方面受概念界定不清的影响,对货代责任保险分类不明,存在逻辑矛盾,同时与无船承运人管理制度不协调,造成市场主体无所适从;另一方面,将该保险设置为强制保险并不妥当。本文第四章在此分析的基础上,提出对国际货运代理人责任保险制度构建的设想。首先,要明晰货代的法律地位和责任。其次,在制度建设上,要统一协调好货代和无船承运人的管理体系,避免冲突和混淆;在推行方式上,应通过强制投保外的其他方法引导市场主体自主选择;在保险形式上,可以考虑保赔化,但短期内难以实现;在条款方面,主要针对新进中国太平洋财产保险股份有限公司推出的条款,提出几点修改建议;在整体构建方面,要建立成系统、相协调的立法体系,才能真正构建起有意义有操作性的国际货运代理人责任保险制度。第五章是本文的结语,对本文的结论进行简要归纳。
[Abstract]:The international freight forwarder, born around tenth Century, has a long history and has established a link between trade and shipping. However, its high risk, low return, and an urgent need for effective risk prevention and control are the right choice.
It is regrettable that the liability insurance of the international freight forwarder does not bring enough attention to it. It is difficult to play its role in our country, and the relevant theoretical research is very few. This article chooses to study the system of the insurance, hoping to reflect its significance, so the industry has to think about the implementation of the insurance through the construction of the system.
The first chapter is the explanation of the basic problems, the definition of the international freight forwarders and the concept of the liability insurance of the international freight forwarders. The traditional freight forwarders mainly act as the agent of the freight forwarders. However, with the emergence of the contract carrier, the definition of the international freight forwarders has been differentiated in a narrow and broad sense. The new concept - no ship carrier. The United States adopts a narrow definition and non ship carrier management system. China lacks the legal definition, only the embodiment of the department rules and regulations; the definition mode is first shifted from the traditional definition to the broad definition, and then to the United States, but the system reform is not completely defined and the independence of the shipper is defined in a broad sense. The special system, to some extent, aggravates the confusion of the concept. This article holds that the launch of the NVOCC should be matched with a narrow definition model, so the international freight forwarder referred to in this article refers to the traditional freight forwarder. The liability insurance of the international freight forwarder is the insured by the freight forwarder, with the liability as the insured subject to the law. There are special characteristics, limited amount, the interests of third party and the characteristics of repayment substitution.
In the second chapter, based on the basic function of liability insurance, combining with the objective of building the international shipping center and the disorder of the order of freight forwarding industry in China, it is necessary to establish the liability insurance system of China's freight forwarder. At the same time, it is believed that the basic legal environment and market basis of the insurance have been preliminarily developed in our country, and the international market is on the international market. It has also worked well and can be used for reference.
The third chapter of this article first evaluates the overall situation of the international freight forwarding management system in China. First, the lack of basic legislation on the issue of freight forwarders leads to the instability of the cargo generation liability insurance system; second, the confusion of the management system has caused the unclear responsibility of the freight forwarder. Secondly, it is specific to the liability insurance system of the freight forwarder, although the Ministry of Commerce has tried, But it has not been effectively established. As for this attempt, this article holds that, on one hand, it is not clearly defined by the definition of the concept, the classification of liability insurance of freight forwarder is unknown, there is a logical contradiction, and it is incompatible with the NVOCC management system, which causes the market subject to do nothing. On the other hand, it is not appropriate to set up the insurance as compulsory insurance.
On the basis of this analysis, the fourth chapter puts forward the assumption of the construction of the liability insurance system for the international freight forwarders. First, we should clarify the legal status and responsibility of the freight forwarders. Secondly, in the system construction, we should harmonize the management system of freight forwarders and non ship carriers to avoid the conflict and confusion; in the way of implementation, the compulsory insurance should be carried out. Other methods outside the market guide the market subject to choose independently; in the form of insurance, it can consider the insurance and indemnity, but it is difficult to realize in the short term; in terms of terms, it is mainly aimed at the provisions of the new China Pacific Property Insurance Co, and puts forward several suggestions for revision; in the aspect of building the whole body, it is necessary to establish a systematic and coordinated legislature. Only in this way can we establish a meaningful and operational liability insurance system for international freight forwarders.
The fifth chapter is the conclusion of this paper, and briefly summarizes the conclusions of this paper.
【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】：D996;D912.28

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