论海盗概念构成要件之“为私人目的”
发布时间：2019-02-23 16:11
【摘要】：海盗可以分为广义的海盗和狭义的海盗,狭义的海盗是指在《联合国海洋法公约》框架下的海盗,即为满足“私人目的”而从事海上劫掠行为的海盗。广义上的海盗是指运用暴力手段在海上抢劫其他船只、飞机或其上财物的行为及实施该行为的人或组织。海盗的出现由来以久,二战后,在一些地区出现了庞大的海盗集团,标志着现代海盗时代的来临。 当今针对海盗已经有很多国际组织和国际法律对其进行规制。其中“为私人目的”是《联合国海洋法公约》中海盗概念的构成要件之一。“为私人目的”是指非隶属于某一政治性组织的成员或组织,以获取财物为目的,并且获得的财物为私人所用的劫掠行为。“私掠”是海盗与“私人目的”的历史联结点。私掠是盛行于16-18世纪由国家出于政治目的授予许可证的海盗。为了区别私掠和没有授予许可证的海盗,“为私人目的”就成为了立法中海盗的要件之一,这种立法习惯随后保留了下来。 当今海盗出现了“恐怖主义化”的倾向,海盗开始与恐怖主义相勾结,必然产生海盗的政治性。这就与传统的海盗概念相违背。“私人目的”海盗构成要件的很多缺陷与不足逐渐显露。有一批国际法律文件已经开始尝试突破《联合国海洋法公约》中关于海盗概念的“私人目的”要件。 笔者认为,海盗概念的“为私人要件”应当废除。同时,也应当建立一套专门规定海盗的国际性法律。海盗行为不完全等于海上恐怖主义行为,也不完全等同于海上暴力行为,这三者拥有一个共同的交集。取消海盗概念的“私人目的”要件,不是为了将所有的海上暴力行为都纳入海盗行为之中,而是为了添补立法空白。海盗与恐怖主义的法律竞合,是较为合适的处理方式。 本文共分为四章,第一章介绍海盗与对海盗进行规制的主要国际法律。第二章介绍“私人要件”在海盗立法中的概念、成因和发展,并介绍海盗和“私人目的”历史联结点——私掠。第三章介绍“私人目的”存在的缺陷与面临的挑战,并对“私人目的”要件在打击现代海盗中存在的缺陷进行一些讨论。第四章讨论海盗概念“私人目的”构成要件的存废问题,以及如何构建新的法律制度。最终本文认为,应该建立海盗与海上恐怖主义的法律竞合制度,赋予各国在处理这类问题上一定的自由裁量权。
[Abstract]:Piracy can be divided into two categories: piracy in a broad sense and piracy in a narrow sense, which refers to pirates under the framework of the United Nations Convention on the Law of the Sea (UNCLOS), that is, pirates engaged in acts of looting at sea in order to satisfy "private purposes". In a broad sense, piracy refers to the use of violent means to rob other ships, aircraft or their belongings at sea, and the person or organization that commits the act. After World War II, large pirate groups appeared in some areas, marking the advent of the modern pirate era. Nowadays, there are many international organizations and laws regulating piracy. Among them, "for private purposes" is one of the constitutive elements of the concept of piracy in the United Nations Convention on the Law of the Sea. "for private purposes" refers to a member or organization which is not affiliated with a political organization and whose purpose is to obtain property, and the property obtained is used by private persons. Private plunder is the historical link between pirate and private purpose. Privatisation is a pirate that was widely licensed by the state for political purposes in the 16-18 th century. In order to distinguish privatised pirates from unlicensed pirates, "for private purposes" became one of the elements of piracy in the legislation, which then survived. Nowadays, pirates appear the tendency of "terrorism", and pirates begin to collude with terrorism, which is bound to produce the political nature of pirates. This goes against the traditional concept of piracy. Many defects and deficiencies in the constitutive elements of piracy for private purpose are gradually revealed. A number of international legal documents have begun to attempt to break through the "private purpose" element of the concept of piracy in the UN Convention on the Law of the Sea. I believe that the concept of piracy for private elements should be abolished. At the same time, a set of international laws specifically regulating piracy should also be established. Piracy is not an act of terrorism at sea, nor is it an act of violence at sea. The "private purpose" element of eliminating the concept of piracy is not to incorporate all acts of maritime violence into piracy, but to fill in legislative gaps. The law of piracy and terrorism is a more appropriate way to deal with. This paper is divided into four chapters. The first chapter introduces the main international law of piracy and the regulation of piracy. The second chapter introduces the concept, causes and development of Private elements in Piracy legislation, and introduces the historical link between Piracy and Private purpose. The third chapter introduces the defects and challenges of "private purpose", and discusses the shortcomings of "private purpose" in the fight against modern pirates. Chapter four discusses the problem of whether the private purpose of piracy is constituted and how to construct a new legal system. Finally, this paper holds that the system of legal concurrence between piracy and maritime terrorism should be established, and that countries should be given the discretion to deal with this kind of problems.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D997.9
本文编号：2428989
[Abstract]:Piracy can be divided into two categories: piracy in a broad sense and piracy in a narrow sense, which refers to pirates under the framework of the United Nations Convention on the Law of the Sea (UNCLOS), that is, pirates engaged in acts of looting at sea in order to satisfy "private purposes". In a broad sense, piracy refers to the use of violent means to rob other ships, aircraft or their belongings at sea, and the person or organization that commits the act. After World War II, large pirate groups appeared in some areas, marking the advent of the modern pirate era. Nowadays, there are many international organizations and laws regulating piracy. Among them, "for private purposes" is one of the constitutive elements of the concept of piracy in the United Nations Convention on the Law of the Sea. "for private purposes" refers to a member or organization which is not affiliated with a political organization and whose purpose is to obtain property, and the property obtained is used by private persons. Private plunder is the historical link between pirate and private purpose. Privatisation is a pirate that was widely licensed by the state for political purposes in the 16-18 th century. In order to distinguish privatised pirates from unlicensed pirates, "for private purposes" became one of the elements of piracy in the legislation, which then survived. Nowadays, pirates appear the tendency of "terrorism", and pirates begin to collude with terrorism, which is bound to produce the political nature of pirates. This goes against the traditional concept of piracy. Many defects and deficiencies in the constitutive elements of piracy for private purpose are gradually revealed. A number of international legal documents have begun to attempt to break through the "private purpose" element of the concept of piracy in the UN Convention on the Law of the Sea. I believe that the concept of piracy for private elements should be abolished. At the same time, a set of international laws specifically regulating piracy should also be established. Piracy is not an act of terrorism at sea, nor is it an act of violence at sea. The "private purpose" element of eliminating the concept of piracy is not to incorporate all acts of maritime violence into piracy, but to fill in legislative gaps. The law of piracy and terrorism is a more appropriate way to deal with. This paper is divided into four chapters. The first chapter introduces the main international law of piracy and the regulation of piracy. The second chapter introduces the concept, causes and development of Private elements in Piracy legislation, and introduces the historical link between Piracy and Private purpose. The third chapter introduces the defects and challenges of "private purpose", and discusses the shortcomings of "private purpose" in the fight against modern pirates. Chapter four discusses the problem of whether the private purpose of piracy is constituted and how to construct a new legal system. Finally, this paper holds that the system of legal concurrence between piracy and maritime terrorism should be established, and that countries should be given the discretion to deal with this kind of problems.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D997.9
【引证文献】
相关硕士学位论文 前1条
1 葛娜娜;海盗赎金支付行为合法性研究[D];大连海事大学;2012年
，本文编号：2428989
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