海盗赎金赔付相关问题探析
发布时间：2018-07-26 06:56
【摘要】：日前,索马里海盗活动频繁,以高额赎金换回人质及船、货的案例发生率不断攀高,以往的海盗行为主要表现为海盗登上船舶,对船上财产进行掠夺以及损坏船舶或者货物,但近些年来索马里海盗的行为却不同于以往,他们劫持船舶后,并不对船舶或者货物进行破坏或者偷盗,而是以扣押船货作为要挟向船东索要大笔赎金。此时的赎金是否还属于传统意义上的海盗范畴?能否按照传统保险条款进行理赔,能否将赎金列入共同海损等问题成为我们海商实务所要解决的问题。我国相关法律对海盗赎金问题并未明确提及,而审判实践中将这类日益频发的案件列入新型海商纠纷,对海盗赎金的承担与赔付也存在颇多争议。当发生赎金损失时,保险人与船东或货主最终无法达成一致的情况下,该类海上保险纠纷进入诉讼仲裁程序也日渐增多。但由于目前国内尚缺乏相关的立法和理论依据,同时在学术探讨方面关于海盗赎金问题的理论研究也还很少,海事法院则将此类案件归结为新类型诉讼纠纷,审判人员都莫衷一是。那么,出现海盗赎金损失时应如何处理,最终应由谁承担,又以何种形式承担?诸如此类太多海商司法实务性问题尚待解决和进一步明确。本文总共分为五章,在第一章中,笔者首先对海盗险的发展起源以及国际上和保险领域对海盗险的定义做大致介绍,接着从传统海盗行为与海盗赎金的三个不同方面进行比较分析提出海盗赎金这种新形式给保险业带来的各种法律困惑和存在问题,第三章则通过对单独海损、施救费用、救助报酬、共同海损等费用的构成的比较论证,以一一排除的方式对海盗赎金进行一个相对精准的定性,认为海盗赎金其符合共同海损中的“代替费用”的特征,具有损失替代性,并同时借鉴英国等他国保险市场的习惯做法,提出将赎金列入共同海损进行分摊更为合理的观点。在第四章中,笔者通过对海商法相关理论的研究,提出关于将赎金列为共同海损分摊实践操作中的解决方案,第五章则单独针对目前我国保险法及海商法中关于海盗赎金问题立法空白及分摊操作困难的现状,对保险人提出的一些可行性建议,希望能以此带给海上保险实务有价值的参考。
[Abstract]:A few days ago, Somali pirates were engaged in frequent activities, with high ransoms being exchanged for hostages and ships, and the incidence of cases of cargo increased continuously. In the past, piracy mainly manifested itself in the form of pirates boarding ships, plundering property on board ships, and damaging ships or cargo. In recent years, however, Somali pirates have acted differently. After hijacking a ship, they do not destroy or steal the ship or cargo, but use the arrest of the ship as a threat to demand a large ransom from the owner. Is ransoms still in the traditional sense of piracy? Whether we can settle claims according to the traditional insurance clauses or whether ransom can be included in the general average has become the problem that our sea merchants should solve in practice. The issue of pirate ransom has not been explicitly mentioned in the relevant laws of our country. However, in the trial practice, the increasingly frequent cases are included in the new type of maritime business disputes, and there are many disputes about the payment and payment of ransom for pirates. When ransom loss occurs, the insurer and the owner or cargo owner can not finally reach an agreement, this kind of marine insurance disputes into the litigation arbitration process is also increasing day by day. However, due to the lack of relevant legislation and theoretical basis in our country at present, and the lack of theoretical research on the issue of piracy ransom in academic research, the maritime court has reduced this case to a new type of litigation dispute. The judges were divided. So, how to deal with the loss of pirate ransom, who should bear the ultimate responsibility, and in what form? This kind of too much maritime business judicature practice sex question to be solved and further definite. This paper is divided into five chapters. In the first chapter, the author gives a general introduction to the origin of piracy insurance and the definition of piracy insurance in international and insurance fields. Then, from three different aspects of traditional piracy and pirate ransom, the author puts forward various legal puzzles and existing problems brought by the new form of pirate ransom to the insurance industry. The third chapter, through the analysis of the special average, the cost of rescue, A comparative demonstration of the composition of expenses such as salvage remuneration, general average, etc., a relatively accurate characterization of pirate ransoms is carried out by means of one exclusion, and it is believed that pirate ransoms accord with the characteristics of "substitute charges" in general average. With the substitution of loss and drawing lessons from the common practice of other countries such as Britain, the author puts forward a more reasonable view that ransom should be included in the general average to be apportioned. In the fourth chapter, the author puts forward the solution of taking ransom as the practical operation of general average allocation through the study of the relevant theory of maritime law. In the fifth chapter, the author puts forward some feasible suggestions to the insurer in the light of the gap in the legislation on piracy ransom in China's insurance law and maritime law. I hope this can bring valuable reference to marine insurance practice.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D912.29;D912.28;D996
本文编号：2145213
[Abstract]:A few days ago, Somali pirates were engaged in frequent activities, with high ransoms being exchanged for hostages and ships, and the incidence of cases of cargo increased continuously. In the past, piracy mainly manifested itself in the form of pirates boarding ships, plundering property on board ships, and damaging ships or cargo. In recent years, however, Somali pirates have acted differently. After hijacking a ship, they do not destroy or steal the ship or cargo, but use the arrest of the ship as a threat to demand a large ransom from the owner. Is ransoms still in the traditional sense of piracy? Whether we can settle claims according to the traditional insurance clauses or whether ransom can be included in the general average has become the problem that our sea merchants should solve in practice. The issue of pirate ransom has not been explicitly mentioned in the relevant laws of our country. However, in the trial practice, the increasingly frequent cases are included in the new type of maritime business disputes, and there are many disputes about the payment and payment of ransom for pirates. When ransom loss occurs, the insurer and the owner or cargo owner can not finally reach an agreement, this kind of marine insurance disputes into the litigation arbitration process is also increasing day by day. However, due to the lack of relevant legislation and theoretical basis in our country at present, and the lack of theoretical research on the issue of piracy ransom in academic research, the maritime court has reduced this case to a new type of litigation dispute. The judges were divided. So, how to deal with the loss of pirate ransom, who should bear the ultimate responsibility, and in what form? This kind of too much maritime business judicature practice sex question to be solved and further definite. This paper is divided into five chapters. In the first chapter, the author gives a general introduction to the origin of piracy insurance and the definition of piracy insurance in international and insurance fields. Then, from three different aspects of traditional piracy and pirate ransom, the author puts forward various legal puzzles and existing problems brought by the new form of pirate ransom to the insurance industry. The third chapter, through the analysis of the special average, the cost of rescue, A comparative demonstration of the composition of expenses such as salvage remuneration, general average, etc., a relatively accurate characterization of pirate ransoms is carried out by means of one exclusion, and it is believed that pirate ransoms accord with the characteristics of "substitute charges" in general average. With the substitution of loss and drawing lessons from the common practice of other countries such as Britain, the author puts forward a more reasonable view that ransom should be included in the general average to be apportioned. In the fourth chapter, the author puts forward the solution of taking ransom as the practical operation of general average allocation through the study of the relevant theory of maritime law. In the fifth chapter, the author puts forward some feasible suggestions to the insurer in the light of the gap in the legislation on piracy ransom in China's insurance law and maritime law. I hope this can bring valuable reference to marine insurance practice.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D912.29;D912.28;D996
【引证文献】
相关硕士学位论文 前1条
1 李肖艳;海盗赎金的性质及分摊研究[D];华东政法大学;2012年
，本文编号：2145213
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