提单转让后托运人对承运人诉权问题的研究
发布时间：2019-04-20 09:59
【摘要】：提单是具有物权凭证功能的可转让运输单证,在现代海运实践中提单的背书转让往往会伴随着运输合同诉权的转移,不过诉权以这样的方式转移并不是自始不变的,而是经过了一个复杂的发展和变化过程。在英美法系合同相对性原则下,诉权的转移是被严格禁止的,因为约因理论要求缔结合同的双方当事人交出自己的一部分利益来换取对方的利益,第三人并不具有这样的约因,因而被禁止享有诉权和其他权利。但是,海运实践的发展一步步突破了合同相对性原则的束缚,提单向海运合同的第三人流转成为了不可阻挡的潮流,加强对持有提单的第三人的保护、赋予持有提单第三人诉权、提单转让后诉权由托运人完全转让给提单持有人逐渐成为了国际共识。不过,随着提单转让后托运人诉权向提单持有人转移,托运人丧失诉权所可能遭受的损害并没有得到应有关注,托运人的权益不仅可能而且正在受到侵害。因此,海运实践需要一个新的机制来解决托运人权益的保护问题,《鹿特丹规则》中创设的海运控制权制度可以为该问题的解决提供一个新的思路,海运控制权虽然在提单转让后也随之转移到持有人的手中,但是,托运人可以通过这项制度更加了解自己在持有提单时享有的权利,和提单在背书转让后自己权利的丧失,从而更加注意对自身权益的保护,避免出现提单转让后托运人权利无法实现的情况。本文分为四个部分:第一部分,简述诉权的概念和内容、提单的产生和提单转让后托运人诉权问题的出现;第二部分,第一,研究诉权中当事人适格问题,即托运人概念和演变过程,承运人概念和发展,第二,研究诉的利益问题,即运输合同法律关系,严守合同相对性原则对提单转让后托运人诉权的影响,和突破合同相对性原则对提单转让后托运人诉权的影响,以及从与其他制度的关系上,探讨解决提单转让后托运人诉权问题的新方法,如研究与中途停运权和海运控制权与此问题的关系;第三部分,分析中国海事判决对提单转让后托运人诉权问题的态度和《鹿特丹规则》在此问题上对中国的影响;第四部分,总结全文观点。
[Abstract]:Bill of lading is a negotiable transport document with the function of proof of title. In modern maritime transport practice, the transfer of endorsement of bill of lading is often accompanied by the transfer of the right of action in the contract of carriage, but the transfer of the right of action in this way is not unchanged from the beginning. But after a complex process of development and change. Under the principle of relativity of contract in Anglo-American law system, the transfer of right of action is strictly prohibited, because the theory requires the parties who conclude the contract to surrender part of their own interests in exchange for the interests of the other party, and the third party does not have such a cause of engagement. As a result, it is prohibited to enjoy the right of action and other rights. However, the development of maritime transport practice has broken through the restraint of the principle of relativity of contract step by step, the circulation of bill of lading to the third party of maritime transport contract has become an irresistible trend, and the protection of the third party holding bill of lading has been strengthened. It has gradually become an international consensus to grant the right of action to a third party who holds a bill of lading and the right to post-appeal of a bill of lading from the shipper to the holder of the bill of lading However, with the transfer of the shipper's right of action to the holder of the bill of lading after the transfer of the bill of lading, the potential damage to the shipper's loss of claim has not received due attention, and the shipper's rights and interests are not only likely to be but also are being infringed. Therefore, maritime transport practice requires a new mechanism to solve the problem of protection of shipper's rights and interests, and the maritime control regime created in the Rotterdam rules can provide a new way of thinking for the solution of this problem. While the right to control by sea is transferred to the holder after the transfer of the bill of lading, the shipper may, through this system, have a better understanding of his rights in the possession of the bill of lading and the loss of his or her rights upon the transfer of the bill of lading, Thus pay more attention to the protection of their own rights and interests, avoid the transfer of bill of lading after the shipper's rights can not be realized. This paper is divided into four parts: the first part is a brief introduction of the concept and content of the right of action, the emergence of the bill of lading and the emergence of the shipper's right of action after the transfer of the bill of lading; The second part, the first part, studies the litigant fitness in the right of action, namely the concept and evolution of shipper, the concept and development of carrier, the second, the interest of litigation, that is, the legal relationship of contract of carriage, The impact of strict adherence to the principle of relativity of contract on the shipper's right of action after the transfer of the bill of lading, and the breakthrough of the principle of relativity of the contract on the shipper's right of action after the transfer of the bill of lading, as well as the relationship with other systems, To explore new ways to solve the problem of shipper's right of action after the transfer of bill of lading, such as the relationship between the right of stoppage and the control of maritime transportation; The third part analyzes the attitude of Chinese maritime judgment to the issue of shipper's right of action after the transfer of bill of lading and the influence of Rotterdam rules on this issue; the fourth part summarizes the full-text point of view.
【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】：D996.19;D922.294
本文编号：2461507
[Abstract]:Bill of lading is a negotiable transport document with the function of proof of title. In modern maritime transport practice, the transfer of endorsement of bill of lading is often accompanied by the transfer of the right of action in the contract of carriage, but the transfer of the right of action in this way is not unchanged from the beginning. But after a complex process of development and change. Under the principle of relativity of contract in Anglo-American law system, the transfer of right of action is strictly prohibited, because the theory requires the parties who conclude the contract to surrender part of their own interests in exchange for the interests of the other party, and the third party does not have such a cause of engagement. As a result, it is prohibited to enjoy the right of action and other rights. However, the development of maritime transport practice has broken through the restraint of the principle of relativity of contract step by step, the circulation of bill of lading to the third party of maritime transport contract has become an irresistible trend, and the protection of the third party holding bill of lading has been strengthened. It has gradually become an international consensus to grant the right of action to a third party who holds a bill of lading and the right to post-appeal of a bill of lading from the shipper to the holder of the bill of lading However, with the transfer of the shipper's right of action to the holder of the bill of lading after the transfer of the bill of lading, the potential damage to the shipper's loss of claim has not received due attention, and the shipper's rights and interests are not only likely to be but also are being infringed. Therefore, maritime transport practice requires a new mechanism to solve the problem of protection of shipper's rights and interests, and the maritime control regime created in the Rotterdam rules can provide a new way of thinking for the solution of this problem. While the right to control by sea is transferred to the holder after the transfer of the bill of lading, the shipper may, through this system, have a better understanding of his rights in the possession of the bill of lading and the loss of his or her rights upon the transfer of the bill of lading, Thus pay more attention to the protection of their own rights and interests, avoid the transfer of bill of lading after the shipper's rights can not be realized. This paper is divided into four parts: the first part is a brief introduction of the concept and content of the right of action, the emergence of the bill of lading and the emergence of the shipper's right of action after the transfer of the bill of lading; The second part, the first part, studies the litigant fitness in the right of action, namely the concept and evolution of shipper, the concept and development of carrier, the second, the interest of litigation, that is, the legal relationship of contract of carriage, The impact of strict adherence to the principle of relativity of contract on the shipper's right of action after the transfer of the bill of lading, and the breakthrough of the principle of relativity of the contract on the shipper's right of action after the transfer of the bill of lading, as well as the relationship with other systems, To explore new ways to solve the problem of shipper's right of action after the transfer of bill of lading, such as the relationship between the right of stoppage and the control of maritime transportation; The third part analyzes the attitude of Chinese maritime judgment to the issue of shipper's right of action after the transfer of bill of lading and the influence of Rotterdam rules on this issue; the fourth part summarizes the full-text point of view.
【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】：D996.19;D922.294
【引证文献】
相关硕士学位论文 前1条
1 周思伊;我国《海商法》托运人法律制度之完善[D];大连海事大学;2012年
，本文编号：2461507
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