无单放货的责任归属与例外研究
发布时间：2018-07-29 20:01
【摘要】： 随着海运的发展,提单作为一种海运单据应运而生,成为收货人向承运人提货所必不可少的凭证。根据我国《海商法》以及国际公约等的规定,承运人必须凭正本提单交货。然而,在实践中,承运人常常凭保函和提单副本放货,这就使得无单放货纠纷案件大量出现。无单放货行为的责任归属问题也成为案件当事人争议的焦点、理论界的研究热点、司法界的难点。因为对无单放货行为责任的定性不同会直接关系到当事人权利义务的确定以及不同的诉讼结果。因此,对无单放货的责任归属与例外研究也显得尤为重要。 该篇论文首先从无单放货的法律性质出发,明确了无单放货的违法性及认定的依据,接着以法律解释方法中的文义解释方法、体系解释方法等多种解释方法探讨了提单的法律属性,得出提单兼具物权效力与债权效力。其次,采用比较分析与归纳分析相结合的方法对承运人无单放货的责任归属的四种理论学说——侵权责任说、违约责任说、例外侵权责任说和侵权违约责任竞合说进行了评价,并由此提出笔者所倾向的学说——侵权违约责任竞合说。接着探讨了在不同相关人下,无单放货责任归属的不同认定。并在从实体和程序上两方面比较了侵权之诉和违约之诉之不同后,引出笔者对违约之诉的偏好,提出对于完善国内相关立法的建议。这也是该论文的核心与创新之处。最后,从航运实践中可允许的几种无单放货责任归属的例外情形以及对大量存在的保函的态度等问题出发,采用实证与规范相结合的方法,来论述各种学说的优缺点,对无单放货的责任归属与例外问题加以梳理,对保函的不同态度尝试性地提出质疑,并找出最适合我国的解决途径。并对当前各个法系对记名提单下无单放货责任是否免除的不同观点中,采用体系解释方法提出自己的观点:记名提单下承运人也须凭正本提单交付货物。
[Abstract]:With the development of marine transportation, bill of lading as a shipping document emerged as a necessary document for the consignee to pick up the goods from the carrier. According to China's Maritime Law and international conventions, the carrier must deliver the original bill of lading. However, in practice, carriers often release goods on the basis of letters of guarantee and copies of bills of lading, which leads to a large number of disputes over the delivery of goods without bills of lading. The issue of liability attribution of undocumented delivery of goods has also become the focus of dispute between the parties involved in the case, the research hotspot in the theoretical field and the difficulty in the judicial field. Because the nature of the liability of undocumented delivery will be directly related to the determination of the parties' rights and obligations as well as the different litigation results. Therefore, it is particularly important to study the attribution and exception of undocumented delivery. This paper firstly starts from the legal nature of the delivery of goods without bill of lading, and clarifies the illegality and the basis of the determination of the delivery of goods without bills, and then uses the method of literal interpretation in the method of legal interpretation. This paper discusses the legal attribute of bill of lading and concludes that bill of lading has both the effect of real right and the validity of creditor's rights. Secondly, this paper uses the method of comparative analysis and inductive analysis to evaluate the four theories of liability attribution of carrier's delivery of goods without bill of lading-tort liability theory, breach liability theory, exception tort liability theory and tort liability concurrence theory. And from this, I tend to put forward the theory-tort liability for breach of contract competing theory. Then it discusses the different cognizance of the responsibility of delivery without documents under different related persons. After comparing the difference between tort action and breach of contract action from the substantive and procedural aspects, the author leads to the author's preference for breach of contract action, and puts forward some suggestions for perfecting the relevant domestic legislation. This is also the core of the paper and innovation. Finally, this paper discusses the merits and demerits of various theories by using the method of combining empirical and normative approaches, starting from several exceptions to the attribution of undocumented delivery liability and attitude towards a large number of existing warranties, which are permitted in shipping practice. This paper combs the problem of liability attribution and exception of delivery without documents, tries to question the different attitudes of guarantee, and finds out the most suitable solution for our country. In view of the different views of each legal system on whether or not to release the goods without bill of lading, the system interpretation method is adopted: the carrier under the registered bill of lading also has to deliver the goods by the original bill of lading.
【学位授予单位】：天津财经大学
【学位级别】：硕士
【学位授予年份】：2008
【分类号】：D922.29
本文编号：2153836
[Abstract]:With the development of marine transportation, bill of lading as a shipping document emerged as a necessary document for the consignee to pick up the goods from the carrier. According to China's Maritime Law and international conventions, the carrier must deliver the original bill of lading. However, in practice, carriers often release goods on the basis of letters of guarantee and copies of bills of lading, which leads to a large number of disputes over the delivery of goods without bills of lading. The issue of liability attribution of undocumented delivery of goods has also become the focus of dispute between the parties involved in the case, the research hotspot in the theoretical field and the difficulty in the judicial field. Because the nature of the liability of undocumented delivery will be directly related to the determination of the parties' rights and obligations as well as the different litigation results. Therefore, it is particularly important to study the attribution and exception of undocumented delivery. This paper firstly starts from the legal nature of the delivery of goods without bill of lading, and clarifies the illegality and the basis of the determination of the delivery of goods without bills, and then uses the method of literal interpretation in the method of legal interpretation. This paper discusses the legal attribute of bill of lading and concludes that bill of lading has both the effect of real right and the validity of creditor's rights. Secondly, this paper uses the method of comparative analysis and inductive analysis to evaluate the four theories of liability attribution of carrier's delivery of goods without bill of lading-tort liability theory, breach liability theory, exception tort liability theory and tort liability concurrence theory. And from this, I tend to put forward the theory-tort liability for breach of contract competing theory. Then it discusses the different cognizance of the responsibility of delivery without documents under different related persons. After comparing the difference between tort action and breach of contract action from the substantive and procedural aspects, the author leads to the author's preference for breach of contract action, and puts forward some suggestions for perfecting the relevant domestic legislation. This is also the core of the paper and innovation. Finally, this paper discusses the merits and demerits of various theories by using the method of combining empirical and normative approaches, starting from several exceptions to the attribution of undocumented delivery liability and attitude towards a large number of existing warranties, which are permitted in shipping practice. This paper combs the problem of liability attribution and exception of delivery without documents, tries to question the different attitudes of guarantee, and finds out the most suitable solution for our country. In view of the different views of each legal system on whether or not to release the goods without bill of lading, the system interpretation method is adopted: the carrier under the registered bill of lading also has to deliver the goods by the original bill of lading.
【学位授予单位】：天津财经大学
【学位级别】：硕士
【学位授予年份】：2008
【分类号】：D922.29
【引证文献】
相关硕士学位论文 前3条
1 陈豫懿;论海运提货保函的法律效力[D];天津财经大学;2009年
2 肖建依;无单放货国际私法问题研究[D];复旦大学;2009年
3 王超;承运人无单放货法律责任研究[D];天津财经大学;2011年
，本文编号：2153836
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