废除共同海损制度的可行性研究
发布时间：2018-07-21 19:57
【摘要】：共同海损(General Average)，是指在同一海上航程中，当船舶、货物和其他财产遭遇共同危险时，为了共同安全，有意而合理地采取措施所直接造成的特殊牺牲、支付的特殊费用，由各受益方按比例分摊的法律制度。 共同海损是海商法中特有的一项法律制度，它的存在有着久远的历史，这一制度曾为航海业的兴盛和繁荣做出了重要的贡献，为实现海上货物运输中公平分担风险、维护船货各方的合法权益，发挥了重要的作用。但是近年来简化以致废除共同海损的呼声渐起，尤其是在UNCITRAL《运输法公约(草案稿)》取消了航海过失免责之后，使得共损分摊与抗辩的矛盾更加突出，客观上促使共同海损的调整范围呈现逐渐缩小的趋势，在此情况下，重新将这一制度应否被废除的问题提上日程是极为有意义的。 本文正文总共分为五章。前两章从共同海损制度的发展历史入手，对这一制度的存废之争进行了分析，总结出应当如何正确地看待这一制度的保留与废除，，以及废除共同海损制度应当具备的条件。在此基础之上，作者在第三章进一步分析了共同海损制度存在的前提和基础，阐述了随着航海技术的发展和人们抗御海上风险能力的增强，共同海损制度的存在基础已经发生了动摇，这为废除共同海损制度创造了条件。在本文的第四章作者介绍了共同海损制度本身在理算和分摊方面存在的难以克服的问题，尤其在UNCITRAL《运输法公约(草案稿)》取消了航海过失免责之后，这些问题将暴露地更为明显。有鉴于此，在本文的第五章作者重点阐述了废除共同海损制度后，海上保险等制度的替代在理论上具有可行性，并且具体分析和初步构建了废除共同海损制度后的救济模式。 综上，本文将以这些问题为切入点对废除共同海损制度的可行性做以全面的分析。
[Abstract]:General average (Average),) refers to the special expenses incurred on the same voyage, when ships, cargo and other property are in common danger, for the sake of common safety and for the purpose of taking measures directly and reasonably. A legal system in which the beneficiaries are prorated. General average is a special legal system in maritime law, its existence has a long history, this system has made an important contribution to the prosperity and prosperity of the maritime industry, in order to realize the fair sharing of risks in the carriage of goods by sea. The legal rights and interests of all parties to the ship and cargo have been safeguarded and played an important role. However, in recent years, there has been a growing demand for simplification and abolition of general average, especially after the abolition of maritime fault exemption in the UNCITRAL Convention on Transport Law (draft), which makes the contradiction between total loss allocation and defense more prominent. Objectively, the adjustment scope of general average is gradually reduced. In this case, it is very meaningful to put the issue of whether or not this system should be abolished on the agenda. The text is divided into five chapters. The first two chapters start with the development history of the general average system, and analyze the controversy of the system, and summarize how to treat the reservation and abolishment of the system correctly, and the conditions that should be possessed to abolish the general average system. On this basis, in chapter three, the author further analyzes the premise and foundation of the general average system, and expounds that with the development of navigation technology and the enhancement of people's ability to resist marine risks, The foundation of general average system has been shaken, which creates conditions for abolishing general average system. In the fourth chapter of this paper, the author introduces the insurmountable problems in the adjustment and allocation of the general average system itself, especially after the UNCITRAL Convention on Transport Law (draft) abolished the exemption from maritime negligence. These problems will become more obvious. In view of this, in the fifth chapter of this paper, the author emphasizes that after abolishing the general average system, the substitution of the marine insurance system is theoretically feasible, and the relief mode after abolishing the general average system is analyzed and preliminarily constructed. To sum up, this paper will make a comprehensive analysis of the feasibility of abolishing the general average system with these problems as the starting point.
【学位授予单位】：大连海事大学
【学位级别】：硕士
【学位授予年份】：2007
【分类号】：D996.19
本文编号：2136691
[Abstract]:General average (Average),) refers to the special expenses incurred on the same voyage, when ships, cargo and other property are in common danger, for the sake of common safety and for the purpose of taking measures directly and reasonably. A legal system in which the beneficiaries are prorated. General average is a special legal system in maritime law, its existence has a long history, this system has made an important contribution to the prosperity and prosperity of the maritime industry, in order to realize the fair sharing of risks in the carriage of goods by sea. The legal rights and interests of all parties to the ship and cargo have been safeguarded and played an important role. However, in recent years, there has been a growing demand for simplification and abolition of general average, especially after the abolition of maritime fault exemption in the UNCITRAL Convention on Transport Law (draft), which makes the contradiction between total loss allocation and defense more prominent. Objectively, the adjustment scope of general average is gradually reduced. In this case, it is very meaningful to put the issue of whether or not this system should be abolished on the agenda. The text is divided into five chapters. The first two chapters start with the development history of the general average system, and analyze the controversy of the system, and summarize how to treat the reservation and abolishment of the system correctly, and the conditions that should be possessed to abolish the general average system. On this basis, in chapter three, the author further analyzes the premise and foundation of the general average system, and expounds that with the development of navigation technology and the enhancement of people's ability to resist marine risks, The foundation of general average system has been shaken, which creates conditions for abolishing general average system. In the fourth chapter of this paper, the author introduces the insurmountable problems in the adjustment and allocation of the general average system itself, especially after the UNCITRAL Convention on Transport Law (draft) abolished the exemption from maritime negligence. These problems will become more obvious. In view of this, in the fifth chapter of this paper, the author emphasizes that after abolishing the general average system, the substitution of the marine insurance system is theoretically feasible, and the relief mode after abolishing the general average system is analyzed and preliminarily constructed. To sum up, this paper will make a comprehensive analysis of the feasibility of abolishing the general average system with these problems as the starting point.
【学位授予单位】：大连海事大学
【学位级别】：硕士
【学位授予年份】：2007
【分类号】：D996.19
【引证文献】
相关期刊论文 前1条
1 赵文燕;;浅析共同海损制度所体现的民法原则[J];中国水运(下半月);2008年07期
相关硕士学位论文 前3条
1 李佳;废除共同海损制度以后的法律构建[D];大连海事大学;2011年
2 丁晓蕾;过失与共同海损成立及分摊的关系研究[D];大连海事大学;2010年
3 刘铂麟;海难救助与共同海损制度之比较研究[D];复旦大学;2012年
本文编号：2136691
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