海上货物运输中承运人责任基础研究
发布时间：2018-07-22 12:19
【摘要】：海上货物运输中承运人的责任问题是海上货物运输法的核心,而其责任基础问题更是核心中的核心。它反映船货双方的利益关系,制约或者促进国际贸易和海上运输业的发展,代表一个国家、地区甚至一个时代的主流思想和立法趋势。当前,有关国际海上货物运输的立法很不统一,所以,关于承运人责任基础的规定也不一致。由于国际公约和各国法律在规定上的含糊不明,长久以来这一问题存在着不少误区和争议。基于这种原因,本文从历史、实质要件以及法理等多角度出发,通过系统的分析,试图厘清在承运人责任基础方面所存在的种种疑问;同时凭借对承运人责任基础的整个发展历程的细致梳理,归纳出未来的发展趋势,以期对我国的海运实践起到借鉴作用。 本文分为五部分。第一部分通过比较分析对承运人责任基础进行界定。第二部分对现行国际公约及法律对海上货物运输承运人责任归责原则的规定做出评价和分析。第三部分和第四部分是相关联的两部分,分别研究了承运人责任基础中过失责任和享受免责的举证责任分配问题。最后一部分“对我国《海商法》承运人责任基础的构想”,同时代作全文的结论,旨在对近年来承运人责任制度的发展进行一下概括,并从中得出国际海上货物运输立法有加重承运人责任的发展趋向。本文以为,我国学界及实务界应对此给予高度重视,一方面,密切注意国际社会的这些动向,并通过法律修订和司法解释的方式弥补法律中已有的漏洞;另一方面,进一步加快我国航运业的发展,非但突出数量,更应注重质量,只有努力提高船舶等级和技术含量,完善内部管理模式,方能从容应对愈来愈严格的承运人责任要求。
[Abstract]:The carrier's liability in the carriage of goods by sea is the core of the law of carriage of goods by sea. It reflects the interests of both parties, restricts or promotes the development of international trade and maritime transportation, and represents the mainstream thought and legislative trend of a country, a region or even an era. At present, the legislation on the international carriage of goods by sea is very inconsistent, so the provisions on the basis of carrier's liability are also inconsistent. Due to the ambiguity of international conventions and national laws, there have been many misunderstandings and controversies on this issue for a long time. Based on this reason, this paper from the history, substantive elements and legal theory and other perspectives, through a systematic analysis, trying to clarify the carrier's liability on the basis of the existence of a variety of questions; At the same time, by combing the whole development course of carrier's liability foundation, the author sums up the development trend in the future, in order to play a reference role in the practice of maritime transportation in our country. This paper is divided into five parts. The first part defines the basis of carrier's liability through comparative analysis. The second part makes an evaluation and analysis of the existing international conventions and laws on the principle of liability of carriers in the carriage of goods by sea. The third part and the fourth part are two parts which are related to each other. It studies the distribution of the burden of proof in the basis of carrier's liability of fault and enjoy the exemption of liability respectively. The last part, "Conception of carrier's liability foundation" in China's Maritime Law, draws the conclusion of the paper at the same time in order to generalize the development of carrier liability system in recent years. From it, it is concluded that the legislation of international carriage of goods by sea has the tendency of increasing the liability of the carrier. This paper holds that our academic and practical circles should attach great importance to this issue. On the one hand, we should pay close attention to these trends in the international community, and make up for the existing gaps in the law by way of legal revision and judicial interpretation; on the other hand, In order to speed up the development of China's shipping industry, not only the quantity but also the quality should be paid more attention to. Only by improving the ship grade and technical content and perfecting the internal management mode, can we deal with the increasingly strict requirements of carrier liability in a leisurely manner.
【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】：D922.294
本文编号：2137447
[Abstract]:The carrier's liability in the carriage of goods by sea is the core of the law of carriage of goods by sea. It reflects the interests of both parties, restricts or promotes the development of international trade and maritime transportation, and represents the mainstream thought and legislative trend of a country, a region or even an era. At present, the legislation on the international carriage of goods by sea is very inconsistent, so the provisions on the basis of carrier's liability are also inconsistent. Due to the ambiguity of international conventions and national laws, there have been many misunderstandings and controversies on this issue for a long time. Based on this reason, this paper from the history, substantive elements and legal theory and other perspectives, through a systematic analysis, trying to clarify the carrier's liability on the basis of the existence of a variety of questions; At the same time, by combing the whole development course of carrier's liability foundation, the author sums up the development trend in the future, in order to play a reference role in the practice of maritime transportation in our country. This paper is divided into five parts. The first part defines the basis of carrier's liability through comparative analysis. The second part makes an evaluation and analysis of the existing international conventions and laws on the principle of liability of carriers in the carriage of goods by sea. The third part and the fourth part are two parts which are related to each other. It studies the distribution of the burden of proof in the basis of carrier's liability of fault and enjoy the exemption of liability respectively. The last part, "Conception of carrier's liability foundation" in China's Maritime Law, draws the conclusion of the paper at the same time in order to generalize the development of carrier liability system in recent years. From it, it is concluded that the legislation of international carriage of goods by sea has the tendency of increasing the liability of the carrier. This paper holds that our academic and practical circles should attach great importance to this issue. On the one hand, we should pay close attention to these trends in the international community, and make up for the existing gaps in the law by way of legal revision and judicial interpretation; on the other hand, In order to speed up the development of China's shipping industry, not only the quantity but also the quality should be paid more attention to. Only by improving the ship grade and technical content and perfecting the internal management mode, can we deal with the increasingly strict requirements of carrier liability in a leisurely manner.
【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】：D922.294
【引证文献】
相关博士学位论文 前1条
1 陈敬根;国际海运承运人在多因致损下的赔偿责任研究[D];大连海事大学;2010年
相关硕士学位论文 前2条
1 石佩文;《鹿特丹规则》下承运人责任基础问题研究[D];大连海事大学;2011年
2 吴松海;论提单中承运人的免责条款[D];复旦大学;2010年
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