海上保险利益与风险负担法律问题研究
发布时间：2018-08-14 11:51
【摘要】：保险公司赔付可能性的大小以及保险合同的效力均取决于保险利益的有无,而海上保险利益作为其中一大特殊类别,不同于传统意义上的可保利益,与买卖合同的重要基础风险负担制度相关联,当事人通过订立海上保险合同以解决跨国货物买卖中货物毁损灭失的救济问题,二者共同引导海上保险业的发展。所以研究国际买卖合同项下海上保险利益的归属和风险负担的法律问题不仅有利于买卖双方正确投保以保障自身权益挽救损失,同时对于在保险理赔纠纷时正确适用保险利益原则及完善相关立法有重要的借鉴价值。文章第一部分在保险利益原则的框架下提出海上保险利益的概念,并结合风险负担制度的含义、法律后果等基础理论,深入探究海上保险利益与风险负担二者之间的关系,得出结论海上保险利益与风险负担在认定上应遵循“实质危险负担说”之规则。第二部分首先通过不同案例提出在FOB/CFR、CIF合同项下风险转移之前买方海上保险利益保护不全面的问题,然后在案例分析的基础上讨论买方在此种情形下是否具备海上保险利益这一前提。其次结合目前世界各国海上保险法实务中的解决方案,以FOB、CIF无论灭失与否条款和装运前条款为例,考量该类条款的缺陷所在,具体到CIF买卖中讨论保险合同转让的合理性依据。文章第三部分重点讨论在不同违约情形发生时海上保险利益于风险负担的相互影响相互制约。从风险负担一般规定着手,比对《联合国货物销售合同公约》、以及英国《1906年海上保险法》、《货物买卖法》中的不同规定,分析一方违约时风险转移对于海上保险利益适用的限制,横向纵向比对海上保险利益的界定与风险负担制度之间的内在关联,并对以上法律框架下海上保险利益的救济途径加以研究。文章第四部分讨论了中国目前立法的弊端并对未来相关立法的完善提出了建议,主要包括以“经济利害关系”界定海上保险利益的属性,明确海上保险利益的转移标准,构建海上保险利益的新格局,认定已付款买方的保险当事人地位等,从而将风险负担与海上保险利益衔接起来以维护海上保险合同损失分担的目的。本文不囿于保险法或者国际经济法单一的角度考量问题,通过中外理论的比较、案例分析等路径,提炼出他国可借鉴的法律规定,结合实践经验对健全我国《海商法》的相关规定提出了自己的观点和见解。
[Abstract]:The possibility of indemnity and the validity of insurance contract all depend on the existence or not of the insurance interest. As one of the special categories, the marine insurance interest is different from the insurable interest in the traditional sense. In connection with the important basic risk burden system of the contract of sale and purchase, the parties concerned conclude a contract of marine insurance to solve the problem of relief of the damage and loss of goods in the transnational sale and purchase of goods, both of which guide the development of the marine insurance industry. Therefore, studying the attribution of marine insurance interests and the burden of risks under international contracts of sale is not only conducive to the correct insurance of both parties in order to protect their own rights and interests to save losses, At the same time, it has important reference value for applying the principle of insurance interest and perfecting relevant legislation. The first part of the article puts forward the concept of marine insurance interest under the framework of insurance interest principle, and combines the basic theory of risk burden system and legal consequences to explore the relationship between marine insurance interest and risk burden. The conclusion is that the interest and risk burden of marine insurance should follow the rule of "substantial risk burden". The second part firstly puts forward the problem that the buyer's marine insurance interests are not fully protected before the risk transfer under FOB / CFRN CIF contract through different cases. Then, on the basis of case study, the premise of whether the buyer has marine insurance interest in this case is discussed. Secondly, combined with the solutions in the practice of marine insurance law of various countries in the world, taking the loss or loss clause and pre-shipment clause as examples, the defects of this kind of clause are considered, and the reasonable basis for the transfer of insurance contract is discussed in the course of CIF purchase and sale. The third part focuses on the mutual influence of marine insurance interests on the risk burden in different breach of contract. Starting from the general provisions on the burden of risk and comparing the different provisions of the United Nations Convention on contracts for the Sale of goods and the United Kingdom's Maritime Insurance Law of 1906 and the Law on the Sale of goods, this paper analyzes the limitations of the transfer of risks to the interests of marine insurance in case of breach of contract by one party. The relationship between the definition of marine insurance benefits and the risk burden system is studied in this paper, and the remedies of marine insurance benefits under the above legal framework are also studied. The fourth part of the article discusses the drawbacks of China's current legislation and puts forward some suggestions for the perfection of relevant legislation in the future, mainly including defining the attributes of marine insurance interests by "economic interests", and clarifying the criteria for the transfer of marine insurance interests. In order to maintain the purpose of loss sharing in marine insurance contract, a new pattern of marine insurance interests is constructed, and the position of the paid buyer is recognized, so as to link the risk burden with the interests of marine insurance. This article is not confined to the insurance law or the international economic law single angle consideration question, through the Chinese and foreign theory comparison, the case analysis and so on path, refines the other countries may draw lessons from the law stipulation, Combined with practical experience, the author puts forward his own views and opinions on perfecting the relevant regulations of Maritime Law of our country.
【学位授予单位】：辽宁大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D922.284
本文编号：2182773
[Abstract]:The possibility of indemnity and the validity of insurance contract all depend on the existence or not of the insurance interest. As one of the special categories, the marine insurance interest is different from the insurable interest in the traditional sense. In connection with the important basic risk burden system of the contract of sale and purchase, the parties concerned conclude a contract of marine insurance to solve the problem of relief of the damage and loss of goods in the transnational sale and purchase of goods, both of which guide the development of the marine insurance industry. Therefore, studying the attribution of marine insurance interests and the burden of risks under international contracts of sale is not only conducive to the correct insurance of both parties in order to protect their own rights and interests to save losses, At the same time, it has important reference value for applying the principle of insurance interest and perfecting relevant legislation. The first part of the article puts forward the concept of marine insurance interest under the framework of insurance interest principle, and combines the basic theory of risk burden system and legal consequences to explore the relationship between marine insurance interest and risk burden. The conclusion is that the interest and risk burden of marine insurance should follow the rule of "substantial risk burden". The second part firstly puts forward the problem that the buyer's marine insurance interests are not fully protected before the risk transfer under FOB / CFRN CIF contract through different cases. Then, on the basis of case study, the premise of whether the buyer has marine insurance interest in this case is discussed. Secondly, combined with the solutions in the practice of marine insurance law of various countries in the world, taking the loss or loss clause and pre-shipment clause as examples, the defects of this kind of clause are considered, and the reasonable basis for the transfer of insurance contract is discussed in the course of CIF purchase and sale. The third part focuses on the mutual influence of marine insurance interests on the risk burden in different breach of contract. Starting from the general provisions on the burden of risk and comparing the different provisions of the United Nations Convention on contracts for the Sale of goods and the United Kingdom's Maritime Insurance Law of 1906 and the Law on the Sale of goods, this paper analyzes the limitations of the transfer of risks to the interests of marine insurance in case of breach of contract by one party. The relationship between the definition of marine insurance benefits and the risk burden system is studied in this paper, and the remedies of marine insurance benefits under the above legal framework are also studied. The fourth part of the article discusses the drawbacks of China's current legislation and puts forward some suggestions for the perfection of relevant legislation in the future, mainly including defining the attributes of marine insurance interests by "economic interests", and clarifying the criteria for the transfer of marine insurance interests. In order to maintain the purpose of loss sharing in marine insurance contract, a new pattern of marine insurance interests is constructed, and the position of the paid buyer is recognized, so as to link the risk burden with the interests of marine insurance. This article is not confined to the insurance law or the international economic law single angle consideration question, through the Chinese and foreign theory comparison, the case analysis and so on path, refines the other countries may draw lessons from the law stipulation, Combined with practical experience, the author puts forward his own views and opinions on perfecting the relevant regulations of Maritime Law of our country.
【学位授予单位】：辽宁大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D922.284
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