运输方式下买卖合同的风险负担研究
发布时间：2018-09-10 07:30
【摘要】：随着全球化经济的迅速发展，国与国之间的经济交往日益密切。中国从改革开放到加入世贸组织以来，逐渐跟随世界经济的潮流并渐渐的与世界接轨，经济指标逐年上升，国内、国外两个市场均呈现出一片欣欣向荣的繁荣景象。在这样的时代背景之下，货物买卖合同风险负担问题作为合同法的重要内容之一，不仅成为双方当事人关注的焦点，同时也成为世界各国买卖法研究的重点。虽然标的物的风险负担以交付主义为一般原则，但现实生活复杂多变，不深入探究交付主义的内涵就无法很好的解决实践中面临的各种新问题新挑战。尤其是涉及运输的买卖合同的风险负担问题，已有的风险负担规则在一些特殊情形之下遇到一定的应用障碍，此类合同的特殊性决定了在分配这种情况下的风险时必须综合考虑几类因素。 本文从现实生活中可能遇到的难点入手，提出几种在现有风险负担规则不能完美解决的特殊情境，以明晰运输方式下买卖合同的风险负担研究有写作的必要，随后仔细阐述运输方式下买卖合同的特殊性究竟是什么，并且明确了这种特殊性之后在风险分配上都应当更加注重考虑哪几类因素。本文正文共分为五个部分先后进行阐述论证。 第一部分为问题的提出，首先提出现实生活中可能出现的三个大方向的问题，第一是交付地点变更的问题，出卖人甲和买受人乙签订了涉及运输的货物买卖合同，并且在合同中明确约定了交付地点，然而，随后买受人乙通知出卖人甲将货物运送至合同约定的履行地点以外的其他地点，此时这批货物的风险应从何时开始转移。第二是出卖人与第一承运人交付衔接问题，，何时才能算作交付的完成。第三是在途货物买卖问题，合同成立时间如何确定以及在有保险单的情况下如何判定风险的问题。 第二部分为对运输方式下买卖合同中风险的因素复杂性讨论，其涉及的主体比一般买卖合同要多，并且往往都要涉及到标的物的特定化问题，其运输方式也有多种多样，在漫长的运输途中也可能遭遇到更多种类的风险。 第三部分为对运输方式下买卖合同中风险的环节复杂性讨论，在交易主体多方的情况下交易环节势必变得更加复杂，涉及提单等问题。 第四部分为结论，总结前文三个部分对于运输方式下买卖合同中存在的各种特殊性，以及存在的问题，提出结论。对于风险的规定不能用法条进行完全的规定，而是必须在实际案例中根据相关的几个因素综合判断。
[Abstract]:With the rapid development of global economy, economic exchanges between countries are becoming closer and closer. Since China's reform and opening up to the World Trade Organization (WTO), China has gradually followed the trend of the world economy and gradually connected with the world. The economic indicators have been rising year by year, and both domestic and foreign markets have shown a prosperous scene. Under this background, as one of the important contents of contract law, the issue of the risk burden of the contract of sale of goods is not only the focus of the parties concerned, but also the focal point of the study of the law of sale of goods all over the world. Although the risk burden of the subject matter is based on the general principle of delivering doctrine, the real life is complex and changeable, so it is impossible to solve all kinds of new problems and new challenges in practice without further exploring the connotation of delivery doctrine. In particular, with regard to the risk burden of the contract of sale and purchase involving transport, the existing risk burden rules have encountered certain obstacles to their application in some special circumstances. The particularity of such contracts determines that a number of factors must be taken into account in the allocation of risks in such cases. Starting from the difficulties that may be encountered in real life, this paper puts forward several special situations in which the existing rules of risk burden can not be solved perfectly. It is necessary to write about the research on the risk burden of sale and purchase contract under the clear mode of transportation. Then it explains carefully what the particularity of the contract of sale and purchase under the mode of transportation is, and clarifies what kinds of factors should be paid more attention to in the risk distribution after this particularity. The text of this paper is divided into five parts. The first part is the question, first of all, the problem of three major directions that may appear in real life. The first is the change of the place of delivery. Seller A and buyer B have signed a contract for the sale of goods involving transportation. And the place of delivery is expressly specified in the contract, however, buyer B then informs seller A to ship the goods to a place other than the place of performance specified in the contract, at which time the risk of the goods should begin to be transferred. The second is the connection between the seller and the first carrier, when the delivery can be counted as the completion of delivery. The third is the sale of goods in transit, how to determine the time of formation of the contract and how to determine the risk in the case of insurance policy. The second part discusses the complexity of the risk factors in the contract of sale and purchase under the mode of transport, which involves more subjects than the general contract of sale, and often involves the question of the specificity of the subject-matter, and its modes of transportation are also various. There may also be more types of risk in the long transit. The third part is to discuss the complexity of the risk in the contract of sale and purchase under the mode of transportation, which is bound to become more complicated in the case of multi-party trading, involving the bill of lading and other issues. The fourth part is the conclusion, summarizes the above three parts to the transportation mode under the sale contract existence each kind of particularity, as well as the existence question, puts forward the conclusion. The regulation of risk should not be completely regulated by law, but must be judged synthetically according to several relevant factors in actual cases.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D923.6
本文编号：2233786
[Abstract]:With the rapid development of global economy, economic exchanges between countries are becoming closer and closer. Since China's reform and opening up to the World Trade Organization (WTO), China has gradually followed the trend of the world economy and gradually connected with the world. The economic indicators have been rising year by year, and both domestic and foreign markets have shown a prosperous scene. Under this background, as one of the important contents of contract law, the issue of the risk burden of the contract of sale of goods is not only the focus of the parties concerned, but also the focal point of the study of the law of sale of goods all over the world. Although the risk burden of the subject matter is based on the general principle of delivering doctrine, the real life is complex and changeable, so it is impossible to solve all kinds of new problems and new challenges in practice without further exploring the connotation of delivery doctrine. In particular, with regard to the risk burden of the contract of sale and purchase involving transport, the existing risk burden rules have encountered certain obstacles to their application in some special circumstances. The particularity of such contracts determines that a number of factors must be taken into account in the allocation of risks in such cases. Starting from the difficulties that may be encountered in real life, this paper puts forward several special situations in which the existing rules of risk burden can not be solved perfectly. It is necessary to write about the research on the risk burden of sale and purchase contract under the clear mode of transportation. Then it explains carefully what the particularity of the contract of sale and purchase under the mode of transportation is, and clarifies what kinds of factors should be paid more attention to in the risk distribution after this particularity. The text of this paper is divided into five parts. The first part is the question, first of all, the problem of three major directions that may appear in real life. The first is the change of the place of delivery. Seller A and buyer B have signed a contract for the sale of goods involving transportation. And the place of delivery is expressly specified in the contract, however, buyer B then informs seller A to ship the goods to a place other than the place of performance specified in the contract, at which time the risk of the goods should begin to be transferred. The second is the connection between the seller and the first carrier, when the delivery can be counted as the completion of delivery. The third is the sale of goods in transit, how to determine the time of formation of the contract and how to determine the risk in the case of insurance policy. The second part discusses the complexity of the risk factors in the contract of sale and purchase under the mode of transport, which involves more subjects than the general contract of sale, and often involves the question of the specificity of the subject-matter, and its modes of transportation are also various. There may also be more types of risk in the long transit. The third part is to discuss the complexity of the risk in the contract of sale and purchase under the mode of transportation, which is bound to become more complicated in the case of multi-party trading, involving the bill of lading and other issues. The fourth part is the conclusion, summarizes the above three parts to the transportation mode under the sale contract existence each kind of particularity, as well as the existence question, puts forward the conclusion. The regulation of risk should not be completely regulated by law, but must be judged synthetically according to several relevant factors in actual cases.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D923.6
【参考文献】
相关期刊论文 前2条
1 赵家仪,陈华庭;我国买卖合同中的“交付”与“风险转移”[J];法商研究;2003年02期
2 黄忠;;关于非典型交易中的风险负担原则[J];理论探索;2008年03期
本文编号：2233786
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