论海上货物运输法强制性规范的冲突与解决

发布时间：2018-11-23 07:42

【摘要】：海上货物运输法的强制性,主要强调当事人不得通过约定减损调整海上货物运输的某些法律规则,否则与之相冲突的约定将归于无效。海上货物运输合同的核心问题在于对承运人的义务和责任界定,海上货物运输法的强制性规范通过规定承运人的最低限度的义务和最大范围的免责,并由此构成公共政策,旨在分摊风险与平衡双方利益。在海上货物运输领域确立和实施强制性规范,从立法角度而言,实质上是国家立法机关对私法自治领域的干预和对当事人合同自由的有限度排除。海上货物运输法在其产生之日起就深深的打上了强制性的烙印,以承运人责任制度为核心的海上货物运输法在其历史演进过程中自始至终贯穿着强制性的特征。本文将首先从海上货物运输法的历史渊源角度看其强制性规范体系的历史演进,并分析影响其变迁的影响因素,如经济基础、公共政策、契约自由的滥用等；接着将着重分析海上货物运输法强制性规范体系的冲突现状,主要从内国法意义上的强制性规范和冲突法意义上强制性规范两方面,前者主要从以承运人责任为核心的强制性规范的内容着手,分析强制性规范体系的扩展,包括责任主体的扩展、承运人责任期间的扩展、强制性规范法律适用范围的扩展,同时对承运人责任归责原则的冲突也进行了相应分析；后者主要是指强制性规范适用的冲突,包括法院管辖权的冲突、仲裁条款效力的冲突以及法律适用的冲突。文章后半部分将试图就强制性规范的冲突主要从冲突法和实体法角度提出解决方案,通过冲突规范的协调与统一能够有效的解决法律适用的问题,但作为一种间接调整方法仍无法解决各国国内法及国际公约之间的实体法内容的差异；国际私法统一化大趋势下海上货物运输公约的制定为冲突的解决提供了有效的途径,《海牙规则》、《维斯比规则》、《汉堡规则》三个公约的并立的局面导致法律适用的冲突与混乱,联合国国际贸易法委员会在2002年提出《联合国全程或者部分海上国际货物运输合同公约》,即《鹿特丹规则》,并获得联合国的通过。《鹿特丹规则》旨在顺应国际商贸发展,统一当下分散、落后的国际货物运输法,在对既有公约规则继承前提下顺应海运实践的新发展,力图统一海上货物运输法,但其效果仍需后续实践检验。此外,契约自由的回归也为海上货物运输法的强制性规范体系带来新的挑战。文章最后将就我国海商法下的海上货物运输法强制性规范体系作出粗略的考量,并为其改革提出相应思考。
[Abstract]:The mandatory nature of the law of carriage of goods by sea mainly emphasizes that the parties may not derogate from certain rules of law governing the carriage of goods by sea by agreement, otherwise the conflicting agreement will be null and void. The core issue of a contract for the carriage of goods by sea lies in the definition of the obligations and responsibilities of the carrier. The mandatory norms of the carriage of goods by sea provide for the carrier's minimum obligations and maximum scope of exemption, and thus constitute public policy. Aim to share risks and balance the interests of both sides. From the legislative point of view, the establishment and implementation of mandatory norms in the field of carriage of goods by sea is essentially the intervention of the national legislature in the field of autonomy of private law and the limited exclusion of the parties' freedom of contract. The law of carriage of goods by sea has been deeply branded as mandatory since its birth, and the law of carriage of goods by sea, which takes the carrier's liability system as the core, runs through the mandatory characteristics throughout its historical evolution. This paper first looks at the historical evolution of the system of mandatory norms from the perspective of the historical origin of the law on the carriage of goods by sea, and analyzes the influential factors affecting its changes, such as economic base, public policy, abuse of freedom of contract, and so on. Then it will focus on the analysis of the current situation of the conflict of the mandatory norms system of the carriage of goods by sea, mainly from two aspects: the mandatory norms in the sense of internal law and the compulsory norms in the sense of conflict of laws. The former mainly starts from the content of the mandatory norms with the carrier liability as the core, and analyzes the expansion of the mandatory norm system, including the extension of the subject of responsibility, the extension of the period of the carrier's liability, the extension of the scope of application of the mandatory norms. At the same time, the conflict of the principle of liability imputation of carrier is also analyzed. The latter mainly refers to the conflict of the application of peremptory norms, including the conflict of the jurisdiction of the court, the conflict of the validity of the arbitration clause and the conflict of the application of the law. In the second half of the article, the author tries to put forward a solution to the conflict of peremptory norms from the angle of conflict law and substantive law, which can effectively solve the problem of legal application through the coordination and unification of conflict norms. However, as an indirect adjustment method, it is still unable to solve the differences of substantive law content between the domestic laws and international conventions. The formulation of the Convention on the Carriage of goods by Sea under the trend of Unification of Private International Law provides an effective way to resolve conflicts. The coexistence of the three Hamburg rules led to conflict and confusion in the application of the law. In 2002, the United Nations Commission on International Trade Law (UNCITRAL) proposed the United Nations Convention on contracts for the International Carriage of goods wholly or partly by Sea. That is, the Rotterdam rules, which were adopted by the United Nations. The Rotterdam rules are designed to conform to the development of international commerce and to unify the current fragmented and backward international law on the carriage of goods, In accordance with the new development of maritime transport practice under the premise of inheriting the existing convention rules, the author tries to unify the law of carriage of goods by sea, but its effect still needs to be tested by subsequent practice. In addition, the return of freedom of contract also brings new challenges to the compulsory regulation system of the law of carriage of goods by sea. In the end, the paper makes a rough consideration on the compulsory standard system of the maritime freight transport law under the maritime law of our country, and puts forward the corresponding consideration for its reform.
【学位授予单位】：复旦大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D996.19

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