我国海上运输中承运人货物留置权制度研究
发布时间：2018-07-15 22:09
【摘要】：自1993年《海商法》施行以来,我国海上运输中承运人的货物留置权问题,就一直是理论与实务界的一个热门话题,由于法律规定不明确及理论研究的局限性,司法实践中存在着普遍的困惑。对该问题的研究,经历了不同的几个阶段。在《合同法》出台前,理论与实务界比较一致的意见是海上运输中承运人只能留置债务人所有的货物;随着《合同法》的实施,该问题一度“柳暗花明”;但随着《担保法》司法解释的颁布,该解释中关于“善意留置”的规定实难适用于货物运输合同中。承运人的货物留置权真犹如“镜花水月”难以援用。中国《海商法》规定承运人货物留置权的真意是什么?其法源在何处?其与一般的民事留置权的成立要件相同吗?其行使的程序当如何?这些问题正是本文研究的内容。借助傅郁林老师充分和深入的研究,作者提出了自己对此问题的理解,及完善我国海运承运人货物留置权制度的设想,希望借《海商法》修改东风此设想能成为现实。本文共分四章,第一章介绍我国海运承运人货物留置权制度立法和理论研究的逐步发展。我国海上运输中的承运人货物留置权制度是逐步发展起来的。其发展可分为3个阶段,第1阶段为《合同法》实施前,第2阶段为《合同法》实施至《担保法司法解释》出台前,第3阶段为《担保法司法解释》施行后即当前。第二章详细介绍和分析大陆法各国的海运承运人货物留置权制度。通过比较的方法,了解各国为达到保护承运人债权的目的,如何通过设置不同的留置权制度和其它制度的配合来实现的。第三章考察和分析我国《海商法》规定的海运承运人货物留置权制度的法源、性质、构成要件及其行使。我国《海商法》规定的海运
[Abstract]:Since the implementation of Maritime Law in 1993, the issue of carrier's lien on goods in maritime transport in China has been a hot topic in the field of theory and practice. There is a general confusion in judicial practice. The study of this problem has gone through several different stages. Before the "contract Law" came into being, the theory and practice agreed that the carrier could only keep all the goods of the debtor in the maritime transport, and with the implementation of the contract Law, the problem was once "bright and dark". However, with the promulgation of the judicial interpretation of the guarantee Law, it is difficult to apply the "bona fide lien" in the interpretation to the contract of carriage of goods. The carrier's right of lien on the goods is as difficult to invoke as the "Mirror Flower Moon". What is the true meaning of China's Maritime Law under the carrier's lien on goods? Where is the source of its law? Is it the same as the common civil lien? What is the procedure for its exercise? These problems are the contents of this paper. With the help of teacher Fu Yu-lin 's full and in-depth research, the author puts forward his own understanding of this problem and the idea of perfecting the system of lien on goods by sea carriers in China. It is hoped that the idea of modifying Dongfeng by means of Maritime Law can become a reality. This paper is divided into four chapters. The first chapter introduces the gradual development of the legislation and theoretical research on the lien of goods by sea carrier in China. The system of carrier's lien on goods in maritime transport in China has been developed step by step. Its development can be divided into three stages: the first stage is before the implementation of the contract Law, the second stage is the implementation of the contract Law to the Judicial interpretation of the Guaranty Law, and the third stage is the current one after the implementation of the guarantee Law Judicial interpretation. Chapter two introduces and analyzes the system of lien of goods of marine carrier in various countries of continental law in detail. By means of comparison, we can find out how to achieve the purpose of protecting the carrier's creditor's rights by setting up different lien systems and the cooperation of other systems. Chapter three investigates and analyzes the legal source, nature, constitution and exercise of the lien system of goods of sea carriers stipulated in Maritime Law of China. Maritime Transport in the Maritime Law of China
【学位授予单位】：华东政法学院
【学位级别】：硕士
【学位授予年份】：2004
【分类号】：D922.294
[Abstract]:Since the implementation of Maritime Law in 1993, the issue of carrier's lien on goods in maritime transport in China has been a hot topic in the field of theory and practice. There is a general confusion in judicial practice. The study of this problem has gone through several different stages. Before the "contract Law" came into being, the theory and practice agreed that the carrier could only keep all the goods of the debtor in the maritime transport, and with the implementation of the contract Law, the problem was once "bright and dark". However, with the promulgation of the judicial interpretation of the guarantee Law, it is difficult to apply the "bona fide lien" in the interpretation to the contract of carriage of goods. The carrier's right of lien on the goods is as difficult to invoke as the "Mirror Flower Moon". What is the true meaning of China's Maritime Law under the carrier's lien on goods? Where is the source of its law? Is it the same as the common civil lien? What is the procedure for its exercise? These problems are the contents of this paper. With the help of teacher Fu Yu-lin 's full and in-depth research, the author puts forward his own understanding of this problem and the idea of perfecting the system of lien on goods by sea carriers in China. It is hoped that the idea of modifying Dongfeng by means of Maritime Law can become a reality. This paper is divided into four chapters. The first chapter introduces the gradual development of the legislation and theoretical research on the lien of goods by sea carrier in China. The system of carrier's lien on goods in maritime transport in China has been developed step by step. Its development can be divided into three stages: the first stage is before the implementation of the contract Law, the second stage is the implementation of the contract Law to the Judicial interpretation of the Guaranty Law, and the third stage is the current one after the implementation of the guarantee Law Judicial interpretation. Chapter two introduces and analyzes the system of lien of goods of marine carrier in various countries of continental law in detail. By means of comparison, we can find out how to achieve the purpose of protecting the carrier's creditor's rights by setting up different lien systems and the cooperation of other systems. Chapter three investigates and analyzes the legal source, nature, constitution and exercise of the lien system of goods of sea carriers stipulated in Maritime Law of China. Maritime Transport in the Maritime Law of China
【学位授予单位】：华东政法学院
【学位级别】：硕士
【学位授予年份】：2004
【分类号】：D922.294
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