海上货物运输合同中承运人履行抗辩权研究

发布时间：2018-05-29 00:23

本文选题：海上货物运输合同 + 承运人　；参考：《大连海事大学》2006年硕士论文

【摘要】：双务合同中的履行抗辩权是合同双方当事人享有的一项重要权利,在合同的履行中起到了保护交易安全,维护合同当事人合法权益的重要作用。我国海商法对海上货物运输合同虽然有专章规定,但却没有对承运人履行抗辩权作出系统的规定,使得实践中法律适用混乱,而且易于产生争端。合同法作为海上货物运输合同的一般性规定,其中的履行抗辩权制度应该适用于海上货物运输合同中。本文即是研究承运人履行抗辩权问题。文章主要根据《合同法》第66条至第69条履行抗辩权及《海商法》第四章海上货物运输合同的规定,考虑航运实践中存在的问题,从承运人履行抗辩权的内容、主体、适用等几方面进行研究。主体方面,海上货物运输合同具有约束第三人的性质,因此履行抗辩权的主体不仅仅限制在运输合同双方当事人——承运人和托运人之间,还包括与海上货物运输合同履行密切相关的收货人。适用方面,运输货物和支付运费是海上货物运输合同中最主要的对待给付义务,同时,收取运费也是最容易出现纠纷和承运人最为关心的问题。承运人为了保护自己的利益,督促有支付运费义务的一方尽快支付运费,可以在适当的情况下行使履行抗辩权,通过拒绝行使己方义务,达到迫使对方履行义务的目的。承运人在行使履行抗辩权的同时,应注意遵循诚实信用原则,在适当的范围内行使。承运人在适用履行抗辩权时,要注意与承运人的留置权、解约权等相关权利的联系和区别。这些权利对于保护承运人利益来说,各有利弊。在实践中应区分不同情况选择适用。通过深入理解,灵活的适用履行抗辩权制度,海上货物运输合同中承运人一方可以更有效的保护自己的合法权益,以实现自己订立合同的目的。
[Abstract]:The right of defense of performance in double service contract is an important right enjoyed by both parties to the contract, which plays an important role in protecting the security of transaction and safeguarding the legitimate rights and interests of the parties to the contract. Although there are special regulations on the contract of carriage of goods by sea in the maritime law of our country, there is no systematic regulation on the carrier's right of defense, which makes the law applicable in practice confused and prone to dispute. As a general stipulation of the contract law of carriage of goods by sea, the system of the right of defense of performance should be applied to the contract of carriage of goods by sea. This article is to study the carrier's right of defense. According to the provisions of articles 66 to 69 of the contract Law and the contract of carriage of goods by sea in Chapter IV of the Maritime Law, this paper considers the problems existing in shipping practice, from the content of the carrier's right of defense to the main body, Application and other aspects of research. On the subject side, the contract of carriage of goods by sea has the nature of binding a third party, so the subject of performance of the right of defense is not limited only between the parties to the contract of carriage-the carrier and the shipper. It also includes consignees who are closely related to the performance of the contract for the carriage of goods by sea. In the aspect of application, transportation of goods and payment of freight are the most important obligations in the contract of carriage of goods by sea. At the same time, the collection of freight is also the most prone to disputes and the most concerned by the carrier. In order to protect its own interests and urge the party who has the obligation to pay freight to pay the freight as soon as possible, the carrier can exercise the right of defense under appropriate circumstances, and by refusing to exercise its obligations, it can achieve the purpose of forcing the other party to perform its obligations. The carrier should follow the principle of good faith and exercise it within the proper scope while exercising the right of defense. The carrier should pay attention to the relations and differences with the carrier's lien, the right of release and other relevant rights when applying the right of defense. These rights have their advantages and disadvantages for the protection of the carrier's interests. In practice, we should distinguish the different circumstances and choose to apply. Through in-depth understanding and flexible application of the system of the right of defense of performance, the carrier can more effectively protect his legitimate rights and interests in the contract of carriage of goods by sea, in order to achieve the purpose of concluding his contract.
【学位授予单位】：大连海事大学
【学位级别】：硕士
【学位授予年份】：2006
【分类号】：D923.6;D922.294

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