船舶油污损害赔偿基金法律制度的研究及对我国的启示
发布时间：2018-12-24 10:11
【摘要】：随着人类社会的发展,石油已逐步取代煤炭成为主要能源,又因为世界石油资源分布不均匀,大量的石油都是经由海上运输到达目的港,运输船舶的溢油事件常有发生,给人们的财产和健康造成很大威胁,也对海洋环境造成了不可估量的损失。 为预防、解决船舶石油泄漏造成的污染,保护海洋生态环境,多年来,国际社会一直寻求通过立法途径解决船舶油污的损害赔偿问题,通过了一系列国际公约,并由此构建了较为完善的国际船舶油污损害赔偿制度。 目前我国海上石油运输量位居世界第三,因为石油运输量的大幅增长,也有较高的可能性会发生船舶溢油事故,中国海域今后可能成为船舶溢油事故的多发区。我国已于2001年通过《2001年燃油污染损害民事责任国际公约》,对运油船舶进行强制保险,并且确定将建立船舶油污损害赔偿基金制度,但还未出台相关的法律规定,针对船舶油污基金问题,财政部和交通部已经联合起草制定了《船舶油污损害赔偿基金征收和使用管理办法》,目前已第三次征求意见和修改,国内油污基金制度有望于近年内建立实施。 本文共分三章,第一章概述船舶油污损害赔偿基金制度,介绍与船舶油污损害赔偿基金有关的术语的含义,并且阐述建立船舶油污损害赔偿基金的法理根源及必要性,主要是对船舶所有人实行限额赔偿的制度及规定由货主承担油污责任的做法体现了利益均衡的原则;本章也介绍了关于船舶油污损害民事责任的国际公约和相关的国内立法,主要有《1971年设立国际油污损害赔偿基金国际公约》、《1992年设立国际油污损害赔偿基金国际公约》、《2001年燃油污染损害民事责任国际公约》和美国《1990年油污法》。 第二章为国际通行的油污损害赔偿机制分析和借鉴,目前主要有三种做法,分别为参加国际基金公约、建立本国的基金体制和通过国际公约和国内立法建立双重基金制度,而就我国目前的实际情况来看,我国现在并不适合加入公约体系,而是应该通过立法的方式建立自己的基金体系。 第三章为具体构建我国基金制度的建议,就此部分,作者主要讨论两方面的问题,分别为建立何种模式的基金制度及关于船舶油污对渔业造成的中长期损失是否应当被纳入赔偿范围,通过分析,作者认为,我国建立信托式的基金模式更有有益,同时,在还未出台相关的司法解释限制前,将渔业中长期损失纳入基金的赔偿范围也能更好的保护我国的海洋环境。 作者希望本文能够在我国船舶油污赔偿基金制度出台时,为相关部门提出一些合理的建议与参考。
[Abstract]:With the development of human society, oil has gradually replaced coal as the main energy, and because of the uneven distribution of oil resources in the world, a large amount of oil is transported by sea to the port of destination. It posed a great threat to people's property and health, and caused incalculable damage to the marine environment. In order to prevent and solve the pollution caused by the oil spill from ships and to protect the marine ecological environment, the international community has been seeking to solve the problem of compensation for damage caused by oil pollution from ships by way of legislation for many years, and has adopted a series of international conventions. Thus, a more perfect compensation system for oil pollution damage of international ships is established. At present, China ranks the third in the world in terms of the volume of offshore oil transportation, because of the large increase in the volume of oil transportation, there is also a high probability of ship oil spills, and the sea area of China may become a frequent area for oil spills in the future. In 2001, China adopted the 2001 International Convention on Civil liability for Oil pollution damage to carry out compulsory insurance against oil carriers and to establish a compensation fund system for oil pollution damage from ships. However, no relevant legal provisions have been issued yet. The Ministry of Finance and the Ministry of Communications have jointly drawn up the measures for the Collection and use of the compensation Fund for Oil pollution damage from ships in response to the issue of the ship Oil pollution Fund, and have now solicited opinions and amendments for the third time. Domestic oil pollution fund system is expected to be established and implemented in recent years. This paper is divided into three chapters. The first chapter summarizes the system of ship oil pollution compensation fund, introduces the meaning of terms related to ship oil pollution compensation fund, and expounds the legal origin and necessity of establishing ship oil pollution compensation fund. The principle of balance of interests is embodied in the system of limited compensation to ship owners and the regulation that the cargo owners should bear the liability for oil pollution. This chapter also introduces the international conventions on civil liability for oil pollution damage from ships and relevant domestic legislation, including the International Convention on the Establishment of the International Fund for compensation for Oil pollution damage in 1971 and the International Convention on the Establishment of the International Fund for compensation for Oil pollution damage in 1992. 2001 International Convention on Civil liability for fuel pollution damage and United States Oil pollution Act 1990. The second chapter analyzes and draws lessons from the internationally prevailing compensation mechanism for oil pollution damage. At present, there are three main approaches, namely, to join the International Fund Convention, to establish a national fund system and to establish a dual fund system through international conventions and domestic legislation. As far as the actual situation of our country is concerned, China is not suitable to join the convention system, but should establish its own fund system by way of legislation. The third chapter is the concrete construction of China's fund system, this part, the author mainly discusses two aspects of the problem, In order to establish the fund system of which model and whether the medium and long term losses caused by oil pollution from ships should be included in the compensation scope, the author thinks that it is more beneficial to establish the trust fund model in China, and at the same time, Before the relevant judicial interpretation restrictions are issued, it is better to protect the marine environment of our country by including the long-term fishery losses in the compensation scope of the fund. The author hopes that this paper can put forward some reasonable suggestions and references for the relevant departments when the system of ship oil pollution compensation fund is issued in our country.
【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】：D996.9;D923;D922.68
，
本文编号：2390495
[Abstract]:With the development of human society, oil has gradually replaced coal as the main energy, and because of the uneven distribution of oil resources in the world, a large amount of oil is transported by sea to the port of destination. It posed a great threat to people's property and health, and caused incalculable damage to the marine environment. In order to prevent and solve the pollution caused by the oil spill from ships and to protect the marine ecological environment, the international community has been seeking to solve the problem of compensation for damage caused by oil pollution from ships by way of legislation for many years, and has adopted a series of international conventions. Thus, a more perfect compensation system for oil pollution damage of international ships is established. At present, China ranks the third in the world in terms of the volume of offshore oil transportation, because of the large increase in the volume of oil transportation, there is also a high probability of ship oil spills, and the sea area of China may become a frequent area for oil spills in the future. In 2001, China adopted the 2001 International Convention on Civil liability for Oil pollution damage to carry out compulsory insurance against oil carriers and to establish a compensation fund system for oil pollution damage from ships. However, no relevant legal provisions have been issued yet. The Ministry of Finance and the Ministry of Communications have jointly drawn up the measures for the Collection and use of the compensation Fund for Oil pollution damage from ships in response to the issue of the ship Oil pollution Fund, and have now solicited opinions and amendments for the third time. Domestic oil pollution fund system is expected to be established and implemented in recent years. This paper is divided into three chapters. The first chapter summarizes the system of ship oil pollution compensation fund, introduces the meaning of terms related to ship oil pollution compensation fund, and expounds the legal origin and necessity of establishing ship oil pollution compensation fund. The principle of balance of interests is embodied in the system of limited compensation to ship owners and the regulation that the cargo owners should bear the liability for oil pollution. This chapter also introduces the international conventions on civil liability for oil pollution damage from ships and relevant domestic legislation, including the International Convention on the Establishment of the International Fund for compensation for Oil pollution damage in 1971 and the International Convention on the Establishment of the International Fund for compensation for Oil pollution damage in 1992. 2001 International Convention on Civil liability for fuel pollution damage and United States Oil pollution Act 1990. The second chapter analyzes and draws lessons from the internationally prevailing compensation mechanism for oil pollution damage. At present, there are three main approaches, namely, to join the International Fund Convention, to establish a national fund system and to establish a dual fund system through international conventions and domestic legislation. As far as the actual situation of our country is concerned, China is not suitable to join the convention system, but should establish its own fund system by way of legislation. The third chapter is the concrete construction of China's fund system, this part, the author mainly discusses two aspects of the problem, In order to establish the fund system of which model and whether the medium and long term losses caused by oil pollution from ships should be included in the compensation scope, the author thinks that it is more beneficial to establish the trust fund model in China, and at the same time, Before the relevant judicial interpretation restrictions are issued, it is better to protect the marine environment of our country by including the long-term fishery losses in the compensation scope of the fund. The author hopes that this paper can put forward some reasonable suggestions and references for the relevant departments when the system of ship oil pollution compensation fund is issued in our country.
【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】：D996.9;D923;D922.68
，
本文编号：2390495
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