未保价快件限额赔偿条款有效性研究
发布时间：2018-10-25 15:32
【摘要】：近年来,我国快递行业因为其便捷高效的服务和廉价的收费,拥有了广大的消费群体,快递企业和快件数量激增。快递服务确实极大地方便了我们的日常生活,但快递纠纷也在不断增加,特别是未保价快件损害引发的赔偿问题。快递企业以是否保价为区别,在快递服务合同中拟定了不同的赔偿条款。保价快件按照声明价值的一定比例另外支付保价费,当快件毁损丢失时,快递企业按照声明价值赔偿快件损失,即为保价快件赔偿条款。未保价快件只需要缴纳快递费,当快件毁损丢失时,快递企业在最高赔偿限额以内赔偿快件损失,我们称之为未保价快件限额赔偿条款。生活中,条款中的赔偿限额常常和快件实际损失存在差距,消费者无法接受,引发大量纠纷,而消费者最终能获得的赔偿金额又和限额赔偿条款是否有效密切相关,因此,对未保价快件限额赔偿条款有效性的研究非常有必要。未保价快件限额赔偿条款是否有效,未保价快件究竟如何赔偿,《邮政法》以及快递行业相关的各种规范、文件没有进行明确规定,理论界和实务界也都存在争议。我们不能笼统地否定未保价快件限额赔偿条款的效力,认可其效力是具有合理性的,符合合同自由原则,并且限制承运人赔偿责任是国内外运输行业的惯例,虽然条款有效可能会产生一些负面影响,但积极影响更难以抹灭,尤其在当前,我国快递行业处于起步阶段,快件损害频发,大量的中小型快递企业抗风险能力差,需要通过限制赔偿责任来确保行业长久发展。两害相权取其轻,我们应该在满足一定条件时认可未保价快件限额赔偿条款的效力。鉴于未保价快件限额赔偿条款具有格式条款和免责条款的双重性质,根据快递行业的实际情况,该条款有效的构成要件应该表现为以下三点:1、条款必须符合公平原则;2、履行提请注意和说明义务;3、排除故意或者重大过失行为。只有同时满足以上三个条件,未保价快件限额赔偿条款才能有效。
[Abstract]:In recent years, because of its convenient and efficient services and cheap charges, express delivery industry has a large number of consumer groups, express delivery enterprises and express products. Express service really greatly facilitates our daily life, but express disputes are also increasing, especially the damages caused by uninsured courier. Express delivery companies to price for the difference, express service contract in the formulation of different terms of compensation. The courier shall pay the premium according to a certain proportion of the declared value. When the express is damaged and lost, the express delivery enterprise shall compensate the express for the loss of the express according to the declared value, that is, the clause of indemnity for the insured courier. Uninsured express only needs to pay express delivery fee, when the express damage is lost, express delivery enterprises compensate for the loss of express within the maximum compensation limit, we call it the uninsured express limit compensation clause. In life, there is often a gap between the amount of compensation in the clause and the actual loss of the courier, which is unacceptable to consumers and leads to a large number of disputes, and the amount of compensation that consumers can eventually receive is closely related to whether the capped compensation clause is effective or not. It is necessary to study the validity of the uninsured express limit compensation clause. Whether the limited compensation clause of uninsured courier is effective, how to compensate uninsured courier, the postal law and all kinds of related norms of express delivery industry are not clearly stipulated in the documents, and there are also disputes between the theoretical and practical circles. We cannot deny the validity of the uninsured express limit compensation clause in general terms, and accept that its validity is reasonable, in conformity with the principle of freedom of contract, and that limiting the carrier's liability is the practice of the transportation industry at home and abroad. Although the effective terms may have some negative effects, but the positive effects are even more difficult to erase, especially at present, the express delivery industry in China is in its infancy, express mail damage occurs frequently, and a large number of small and medium-sized express delivery enterprises have poor ability to resist risks. There is a need to ensure the long-term growth of the industry by limiting liability. The right of two damages is light, we should approve the effect of the limit compensation clause of uninsured courier when meeting certain conditions. In view of the fact that the uninsured express limit compensation clause is of the dual nature of the format clause and the exemption clause, according to the actual situation in the express delivery industry, The effective elements of this clause should be shown as follows: 1, the clause must conform to the principle of fairness; 2, fulfill the obligation to draw attention and explanation; 3, exclude intentional or gross negligence. Only meet the above three conditions at the same time, uninsured express limit compensation clause can be effective.
【学位授予单位】：安徽财经大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D922.296
本文编号：2294112
[Abstract]:In recent years, because of its convenient and efficient services and cheap charges, express delivery industry has a large number of consumer groups, express delivery enterprises and express products. Express service really greatly facilitates our daily life, but express disputes are also increasing, especially the damages caused by uninsured courier. Express delivery companies to price for the difference, express service contract in the formulation of different terms of compensation. The courier shall pay the premium according to a certain proportion of the declared value. When the express is damaged and lost, the express delivery enterprise shall compensate the express for the loss of the express according to the declared value, that is, the clause of indemnity for the insured courier. Uninsured express only needs to pay express delivery fee, when the express damage is lost, express delivery enterprises compensate for the loss of express within the maximum compensation limit, we call it the uninsured express limit compensation clause. In life, there is often a gap between the amount of compensation in the clause and the actual loss of the courier, which is unacceptable to consumers and leads to a large number of disputes, and the amount of compensation that consumers can eventually receive is closely related to whether the capped compensation clause is effective or not. It is necessary to study the validity of the uninsured express limit compensation clause. Whether the limited compensation clause of uninsured courier is effective, how to compensate uninsured courier, the postal law and all kinds of related norms of express delivery industry are not clearly stipulated in the documents, and there are also disputes between the theoretical and practical circles. We cannot deny the validity of the uninsured express limit compensation clause in general terms, and accept that its validity is reasonable, in conformity with the principle of freedom of contract, and that limiting the carrier's liability is the practice of the transportation industry at home and abroad. Although the effective terms may have some negative effects, but the positive effects are even more difficult to erase, especially at present, the express delivery industry in China is in its infancy, express mail damage occurs frequently, and a large number of small and medium-sized express delivery enterprises have poor ability to resist risks. There is a need to ensure the long-term growth of the industry by limiting liability. The right of two damages is light, we should approve the effect of the limit compensation clause of uninsured courier when meeting certain conditions. In view of the fact that the uninsured express limit compensation clause is of the dual nature of the format clause and the exemption clause, according to the actual situation in the express delivery industry, The effective elements of this clause should be shown as follows: 1, the clause must conform to the principle of fairness; 2, fulfill the obligation to draw attention and explanation; 3, exclude intentional or gross negligence. Only meet the above three conditions at the same time, uninsured express limit compensation clause can be effective.
【学位授予单位】：安徽财经大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D922.296
【参考文献】
相关期刊论文 前1条
1 王利明;对《合同法》格式条款规定的评析[J];政法论坛;1999年06期
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