论海上货物运输中托运人的合同变更权

发布时间：2018-08-22 16:58

【摘要】：近年来,我国对外贸易发展日益繁荣,与之有密切联系的海上货物运输活动也迅速发展。在海上货物运输合同履行过程中,海上货物运输合同一方当事人或贸易合同当事人经常会因航运实践的需要、运输合同或者贸易合同发生变化等,而要求变更海上货物运输合同。然而,我国《海商法》并没有明确具体的法律规定对海上货物运输合同中托运人的合同变更权予以规范。《合同法》中对运输合同变更作出了规定,但作为调整所有运输方式的一般性规定,难以直接适用于海上货物运输,来有效解决海上货物运输过程中托运人行使变更权变更海上货物运输合同所产生的争议纠纷。所以,本文将结合国内外的有关立法和司法实践,通过研究海上货物运输合同中托运人合同变更权的有关问题,提出完善我国海上货物运输合同中托运人的合同变更权制度的有益建议。本文第一部分在介绍了合同变更的含义的基础上,对海上货物运输合同变更的含义进行了界定,分析了海上货物运输合同发生变更的原因,并据此对海上货物运输合同变更的类型进行了划分;对海上货物运输合同变更所具有的特殊性进行具体阐述,以促使更好地理解海上货物运输合同变更中存在的有关问题。第二部分对国外法律、国际条约与惯例中与海上货物运输合同变更有关的规定进行了简单梳理。在英美法系中托运人通过行使中途停运权来实现变更合同的目的、《鹿特丹规则》规定控制权人(包括托运人),可以通过行使控制权来变更海上货物运输合同。在对这些制度予以简单梳理并与我国有关海上货物运输合同变更的法律规定相比较的基础上,探索如何完善我国海上货物运输合同中托运人的合同变更权的有关法律制度。第三部分通过介绍海上货物运输合同中托运人的合同变更权的权利主体、行使期限、行使条件等,分析了我国有关海上货物运输合同中托运人的合同变更权的立法现状以及在航运实践和司法实践中的适用困境。第四部分在前文论述的基础上,提出完善我国海上货物运输合同中托运人合同变更权制度的建议,以期对完善我国海上货物运输合同中托运人的合同变更权制度起到有益的促进作用。
[Abstract]:In recent years, China's foreign trade has become more and more prosperous. During the performance of a contract for the carriage of goods by sea, a party to a contract for the carriage of goods by sea or a party to a trade contract will often change the contract of carriage or the contract of trade because of the needs of shipping practice. A change in the contract for the carriage of goods by sea is required. However, China's Maritime Law does not have specific legal provisions to regulate the right of the shipper to change the contract in the contract of carriage of goods by sea. However, as a general regulation to adjust all modes of transport, it is difficult to directly apply to the carriage of goods by sea, in order to effectively resolve the disputes arising from the exercise of the right of change of the shipper's right to change the contract of carriage of goods by sea during the carriage of goods by sea. Therefore, this article will combine the domestic and foreign related legislation and the judicial practice, through studies the shippers contract change right related question in the contract of carriage of goods by sea, Some useful suggestions are put forward to perfect the system of the shipper's right to change the contract in the contract of carriage of goods by sea in China. In the first part of this paper, on the basis of introducing the meaning of the contract change, the meaning of the change of the contract of carriage of goods by sea is defined, and the reasons for the change of the contract of carriage of goods by sea are analyzed. On the basis of this, the types of the changes of the contract of carriage of goods by sea are divided, and the particularity of the change of the contract of carriage of goods by sea is elaborated in order to promote a better understanding of the problems existing in the alteration of the contract of carriage of goods by sea. The second part briefly combs the provisions of foreign law, international treaties and practices related to the modification of contract for the carriage of goods by sea. In the common law system, the shipper realizes the purpose of changing the contract by exercising the right of stoppage. The Rotterdam rules stipulate that the controlling party (including the shipper) may change the contract of carriage of goods by sea by exercising the right of control. On the basis of simply combing these systems and comparing them with the legal provisions concerning the modification of the contract of carriage of goods by sea in our country, this paper explores how to perfect the relevant legal system of the right of the shipper to change the contract in the contract of carriage of goods by sea in our country. The third part introduces the subject of the shipper's right to change the contract in the contract of carriage of goods by sea, the period of exercise, the conditions of exercise, etc. This paper analyzes the current legislative situation of the shipper's right to change the contract in the contract of carriage of goods by sea in China and the difficulties in application in shipping practice and judicial practice. The fourth part, on the basis of the above discussion, puts forward some suggestions to perfect the system of the shipper's right to change the contract in the contract of carriage of goods by sea in our country. The purpose is to improve the shippers' right of contract change in the contract of carriage of goods by sea.
【学位授予单位】：大连海事大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D922.294

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