海事诉讼中举证责任若干问题的研究
发布时间：2018-07-22 10:16
【摘要】：在民事纠纷中，当诉讼作为一种可选择的最终解决当事人之间争议的方式时，各方当事人都需依法律规定提交全面、充分以及有效的利己证据，来证明其主张事项的真实性，以最大限度地保护自己诉请“公力救济”的合法权利。在这种诉讼过程中，提交证据以证明其主张事项之程序规范——举证责任制度，作为一项重要的诉讼制度早已为人们所普遍接受。然而，当前在我国司法实践中存在着“重实体，轻程序”的现象，因而重新审视和强调“程序法”规范显得尤为重要。有鉴于此，本文将着笔于构成诉讼程序法内容之一的举证责任制度。本文对海事举证责任的研究是建立在对一般民事举证责任分析的基础上，，结合海商法特点，重点对海事诉讼案件中若干重要事实问题做了具体的研究和分析。 本文共分为四章。 第一章对民事举证责任的双重含义，即行为责任和结果责任、本质属性、研究意义等基本问题进行论述。笔者认为在整个举证责任中，结果责任应为举证责任本质特征之所在，行为责任只是结果责任在具体诉讼中的“投影”。在此基础上，比较分析了举证责任分配各理论学说。 第二章对我国海事诉讼中举证责任的分配规则和方式进行了讨论。海商法作为民商法的特别法，在民法中有关举证责任的基本原则，举证责任中举证责任的分配、举证责任的免除、举证责任的倒置以及举证责任中的推定等等，在海商法中均有所体现。另一方面，海事实体法中的责任基础、归责原则、免责事项以及航运实务的特点，决定了海事诉讼举证责任又有着区别于一般民事举证责任的特殊性。 第三章重点对海运货损索赔举证责任进行了阐述。在海运货损索赔诉讼中，海上货物索赔举证责任贯穿了诉讼的整个过程。根据海运货损索赔诉讼司法实践，索赔方与承运人需要加以举证的实体事实要件主要存在以下几个方面：(1)货物在承运人照管期间的灭失或短量；(2)免责举证；(3)船舶适航举证；(4)绕航举证；(5)管货举证。因此笔者对上述几个方面的实体事实要件的举证逐一作了详细论述。 第四章进一步对举证责任在海上保险诉讼中的具体运用加以论述。在分析海上保险索赔诉讼中举证责任分配一般原则的基础上，重点研究了实践中容易引起争议的问 海事诉讼中举证责任若干问题的研究 题，针对海上保险领域的一些自身特点，并结合最高人民法院颁布的有关司法解释， 论述了我国海事审判实践中相关问题的解决办法。 我国在传统上继受大陆法体制，素有重实体、轻程序，重实务、轻理论之倾向， 虽然近年来在民事举证责任制度方面有了大踏步的发展和完善，但由于我国法律界缺 乏对海事举证责任制度理论上的具体应用研究，从而使司法审判实践常常带有一定的 紊乱性。从目前情况来看，我国有关海事举证责任制度的理论，如果用诸如“寥若晨 星”、“高处不胜寒”此类的言语来表述的话，一点也不为之过分。本文的研究不过是 一种伺机投石问路的尝试，作为一个海商法的学习者，希冀此般拙笔亦能借以达到抛 砖引玉的效应。
[Abstract]:In civil disputes, when the litigation is an optional way to eventually settle the dispute between the parties, all parties need to submit comprehensive, full and effective egoistic evidence in accordance with the legal provisions to prove the authenticity of the claims, so as to protect the legitimate rights of "public relief" to the maximum extent. In the process of litigation, the system of burden of proof has long been accepted as an important system of litigation, which is an important procedure system. However, there is a phenomenon of "heavy entity and light procedure" in the judicial practice of our country. Therefore, it is particularly important to re examine and emphasize the code of procedure law. In view of this, this article will be written in the system of the burden of proof, which constitutes one of the contents of the procedural law. The study of maritime proof responsibility is based on the analysis of the general burden of proof in civil cases, and on the basis of the characteristics of the maritime law, and the specific research and analysis of some important facts in maritime litigation cases.
This article is divided into four chapters.
The first chapter discusses the dual meaning of the civil burden of proof, that is, the responsibility of behavior and the responsibility of result, the essential attribute and the significance of the research. The author thinks that in the whole burden of proof, the result responsibility should be the essential feature of the burden of proof, and the responsibility of action is only the "projection" of the result responsibility in the specific litigation. The theory of the distribution of the burden of proof is compared and analyzed.
The second chapter discusses the distribution rules and methods of the burden of proof in China's maritime litigation. As a special law of the civil and commercial law, the maritime law is the basic principle of the burden of proof in civil law, the distribution of the burden of proof in the burden of proof, the exemption of the burden of proof, the inversion of the burden of proof and the presumption of the burden of proof and so on. On the other hand, the responsibility basis of the maritime entity law, the principle of imputation, the disclaimer and the characteristics of the shipping practice have determined the particularity of the burden of proof in maritime litigation which is different from the common civil burden of proof.
The third chapter focuses on the burden of proof of maritime cargo damage claim. In the lawsuit of marine cargo damage claim, the burden of proof of maritime cargo claim runs through the whole process of litigation. According to the judicial practice of maritime cargo damage claim litigation, the substantive facts of the claim and the carrier need to be proved mainly in the following aspects: (1) goods The loss or short amount of the goods during the carrier's care; (2) disclaimer proof; (3) shipping proof of seaworthiness; (4) circling the proof; (5) the proof of the goods. Therefore, the author gives a detailed exposition of the evidence of the substantive facts in the above-mentioned aspects.
The fourth chapter further discusses the specific application of the burden of proof in the maritime insurance litigation. On the basis of the analysis of the general principle of the allocation of burden of proof in the claim litigation of maritime insurance, it focuses on the question which is easily disputed in practice.
Research on some problems of the burden of proof in Maritime Litigation
In the light of some of the characteristics of the marine insurance field, combined with the relevant judicial interpretations issued by the Supreme People's court,
The solutions to relevant problems in maritime trial practice in China are discussed.
China has traditionally been subjected to the system of the continental law, which has the tendency to emphasize entities, neglect procedures, emphasize practice, and ignore theories.
Although there has been great development and improvement in the civil burden of proof system in recent years, due to the lack of legal profession in China
Lack of specific application research on the maritime burden of proof system, so that judicial practice is often carried out.
From the current situation, the theory of the burden of proof system of maritime affairs in China should be used in the morning.
The words "stars" and "high places are cold" are not too much to say.
An attempt to find a way to ask questions, as a learner of maritime law, hopes that this kind of writing can also be achieved.
The effect of brick to lead jade.
【学位授予单位】：上海海事大学
【学位级别】：硕士
【学位授予年份】：2004
【分类号】：D925.13
本文编号：2137080
[Abstract]:In civil disputes, when the litigation is an optional way to eventually settle the dispute between the parties, all parties need to submit comprehensive, full and effective egoistic evidence in accordance with the legal provisions to prove the authenticity of the claims, so as to protect the legitimate rights of "public relief" to the maximum extent. In the process of litigation, the system of burden of proof has long been accepted as an important system of litigation, which is an important procedure system. However, there is a phenomenon of "heavy entity and light procedure" in the judicial practice of our country. Therefore, it is particularly important to re examine and emphasize the code of procedure law. In view of this, this article will be written in the system of the burden of proof, which constitutes one of the contents of the procedural law. The study of maritime proof responsibility is based on the analysis of the general burden of proof in civil cases, and on the basis of the characteristics of the maritime law, and the specific research and analysis of some important facts in maritime litigation cases.
This article is divided into four chapters.
The first chapter discusses the dual meaning of the civil burden of proof, that is, the responsibility of behavior and the responsibility of result, the essential attribute and the significance of the research. The author thinks that in the whole burden of proof, the result responsibility should be the essential feature of the burden of proof, and the responsibility of action is only the "projection" of the result responsibility in the specific litigation. The theory of the distribution of the burden of proof is compared and analyzed.
The second chapter discusses the distribution rules and methods of the burden of proof in China's maritime litigation. As a special law of the civil and commercial law, the maritime law is the basic principle of the burden of proof in civil law, the distribution of the burden of proof in the burden of proof, the exemption of the burden of proof, the inversion of the burden of proof and the presumption of the burden of proof and so on. On the other hand, the responsibility basis of the maritime entity law, the principle of imputation, the disclaimer and the characteristics of the shipping practice have determined the particularity of the burden of proof in maritime litigation which is different from the common civil burden of proof.
The third chapter focuses on the burden of proof of maritime cargo damage claim. In the lawsuit of marine cargo damage claim, the burden of proof of maritime cargo claim runs through the whole process of litigation. According to the judicial practice of maritime cargo damage claim litigation, the substantive facts of the claim and the carrier need to be proved mainly in the following aspects: (1) goods The loss or short amount of the goods during the carrier's care; (2) disclaimer proof; (3) shipping proof of seaworthiness; (4) circling the proof; (5) the proof of the goods. Therefore, the author gives a detailed exposition of the evidence of the substantive facts in the above-mentioned aspects.
The fourth chapter further discusses the specific application of the burden of proof in the maritime insurance litigation. On the basis of the analysis of the general principle of the allocation of burden of proof in the claim litigation of maritime insurance, it focuses on the question which is easily disputed in practice.
Research on some problems of the burden of proof in Maritime Litigation
In the light of some of the characteristics of the marine insurance field, combined with the relevant judicial interpretations issued by the Supreme People's court,
The solutions to relevant problems in maritime trial practice in China are discussed.
China has traditionally been subjected to the system of the continental law, which has the tendency to emphasize entities, neglect procedures, emphasize practice, and ignore theories.
Although there has been great development and improvement in the civil burden of proof system in recent years, due to the lack of legal profession in China
Lack of specific application research on the maritime burden of proof system, so that judicial practice is often carried out.
From the current situation, the theory of the burden of proof system of maritime affairs in China should be used in the morning.
The words "stars" and "high places are cold" are not too much to say.
An attempt to find a way to ask questions, as a learner of maritime law, hopes that this kind of writing can also be achieved.
The effect of brick to lead jade.
【学位授予单位】：上海海事大学
【学位级别】：硕士
【学位授予年份】：2004
【分类号】：D925.13
【引证文献】
相关会议论文 前1条
1 吴锋;;刍议海运火灾免责的举证制度[A];第四届广东海事高级论坛论文集[C];2012年
相关硕士学位论文 前2条
1 杜华文;论海上货物运输承运人赔偿责任的归责原则[D];华侨大学;2005年
2 王春赫;海上货物运输保险的举证责任研究[D];大连海事大学;2013年
本文编号：2137080
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