海上人身伤亡损害赔偿责任制度研究
发布时间：2018-07-31 13:28
【摘要】：随着水上运输和水上作业的发展，海上人身伤亡案件不断发生。海上人身伤亡的侵害的客体是自然人的生命健康权，具有一定的特殊性：这些人身权是民事主体的固有权利，与主体不可分割。现代立法逐渐重视对人身权的保护和侵害人身权的救济方法。海上人身伤亡损害赔偿就是侵害人身权的救济方法之一。 作为民法之侵权行为法和海商法的重要组成部分的海上人身伤亡损害赔偿，其基础理论在民法学界尚未引起足够的重视。目前，我国法律对海上人身伤亡损害赔偿的规定并不完善，存在着一些问题。本文将针对现有的海上人身伤亡损害赔偿责任制度中存在的问题做出阐述，并对海上人身伤亡损害赔偿的法律适用、归责原则、责任限额的完善提出自己的观点。 论文的第一章主要是对海上人身伤亡损害的基本法律理论问题的研究，，首先对海上人身伤亡损害进行了定义，即在海上或与海相通的可航水域，在海上运输或者其他海上作业、港口作业等过程中由于自然灾害或者人为因素造成船员、旅客和其他人员的生命健康权的损害而导致伤亡的后果。然后研究了我国关于海上人身伤亡损害赔偿的法律现状及相关法律法规存在的问题。 第二章对我国海上人身伤亡损害赔偿应当适用的归责原则进行了分析，因为解决海上人身伤亡赔偿问题，必须准确把握各类海上人身伤亡损害的归责原则，它决定着承担责任的主体、举证责任的分配和免责事由等重要内容。 第三章的主要内容是根据确定海上人身伤亡损害赔偿责任范围的一般原则讨论海上人身伤亡损害赔偿数额的具体计算方法。同时对赔偿金的支付方法和海上人身伤亡损害赔偿的责任限制也进行了研究。 第四章是关于海上人身伤亡的精神损害赔偿的论述。确立人身伤害精神损害赔偿制度是保护公民人格利益的必要手段。在尊重人们的精神价值的现代社会，精神损害赔偿的提出体现了法律对人格利益的保护和救济，体现了对受害方利益的保护。 第五章是文章的结论，主要是对完善我国海上人身伤亡损害赔偿法律的若干 建议。 笔者注重用一般的民法理论和比较分析的方法来解决错综复杂的法律问题， 提出了一些见解，并在此基础上提出了完善相关法律的建议。本文的侧重点在对 海上人身伤亡损害赔偿与各种保险赔偿的关系，以及最高人民法院司法解释中规 定的海上人身伤亡最高赔偿限额不应适用的论述。 完善我国关于海上人身伤亡损害赔偿责任制度是法律发展的必然，也是海事 司法实践的需要。
[Abstract]:With the development of water transportation and water operation, casualties at sea occur continuously. The object of infringement of personal injury and death at sea is the life and health rights of natural persons with certain particularity: these personal rights are inherent rights of civil subjects and inseparable from the subject. Modern legislation has gradually attached importance to the protection of personal rights and remedies for infringement of personal rights. Compensation for personal injury and injury at sea is one of the remedies for infringement of personal rights. As an important part of the tort law and maritime law of civil law, the basic theory of compensation for personal injury and injury at sea has not been paid enough attention to in the field of civil law. At present, the law of our country is not perfect in the provision of compensation for personal injury and death at sea, and there are some problems. This paper will expound the problems existing in the existing liability system of compensation for personal injury and injury at sea, and put forward its own views on the application of the law, the principle of imputation and the perfection of the limitation of liability for the compensation for personal injury and injury at sea. The first chapter is mainly about the study of the basic legal theory of maritime personal injury and injury. Firstly, the paper defines the maritime personal injury and injury, that is, transportation or other operations at sea or navigable waters connected with the sea. In the process of port operation, the damage to the life and health of crew members, passengers and other personnel caused by natural disasters or human factors results in the consequences of casualties. Then it studies the present situation of the law and the problems of the relevant laws and regulations on the compensation for personal injury and death at sea in our country. The second chapter analyzes the principle of imputation that should be applied to the compensation for personal injury at sea in China, because to solve the problem of compensation for personal injury at sea, we must accurately grasp the imputation principle of various kinds of personal injury at sea. It determines the main body of the responsibility, the distribution of the burden of proof and the reason of exemption and other important contents. The main content of the third chapter is to discuss the specific calculation method of the amount of compensation for personal injury at sea according to the general principle of determining the scope of liability for compensation for personal injury and injury at sea. At the same time, the method of payment of compensation and limitation of liability for compensation for personal injury at sea are also studied. The fourth chapter is about the marine personal injury compensation for mental damage. To establish the system of compensation for personal injury and mental injury is a necessary means to protect the interests of citizens' personality. In the modern society which respects the spiritual value of people, the proposal of compensation for spiritual damage embodies the protection and relief of the interests of personality and the protection of the interests of the aggrieved party. The fifth chapter is the conclusion of the article, mainly to improve the maritime personal injury and injury compensation law of some suggestions. The author pays attention to solving the complicated legal problems with general civil law theory and comparative analysis, puts forward some opinions, and puts forward some suggestions to perfect the relevant laws. The emphasis of this paper is on the relationship between the compensation for personal injury and death at sea and various kinds of insurance compensation. And the discussion that the maximum compensation limit of maritime personal injury and death should not be applied in the judicial interpretation of the Supreme people's Court. It is necessary for the development of law to perfect the liability system of maritime personal injury and injury compensation in our country, and it is also the need of maritime judicial practice.
【学位授予单位】：大连海事大学
【学位级别】：硕士
【学位授予年份】：2004
【分类号】：D923;D922.294
本文编号：2155727
[Abstract]:With the development of water transportation and water operation, casualties at sea occur continuously. The object of infringement of personal injury and death at sea is the life and health rights of natural persons with certain particularity: these personal rights are inherent rights of civil subjects and inseparable from the subject. Modern legislation has gradually attached importance to the protection of personal rights and remedies for infringement of personal rights. Compensation for personal injury and injury at sea is one of the remedies for infringement of personal rights. As an important part of the tort law and maritime law of civil law, the basic theory of compensation for personal injury and injury at sea has not been paid enough attention to in the field of civil law. At present, the law of our country is not perfect in the provision of compensation for personal injury and death at sea, and there are some problems. This paper will expound the problems existing in the existing liability system of compensation for personal injury and injury at sea, and put forward its own views on the application of the law, the principle of imputation and the perfection of the limitation of liability for the compensation for personal injury and injury at sea. The first chapter is mainly about the study of the basic legal theory of maritime personal injury and injury. Firstly, the paper defines the maritime personal injury and injury, that is, transportation or other operations at sea or navigable waters connected with the sea. In the process of port operation, the damage to the life and health of crew members, passengers and other personnel caused by natural disasters or human factors results in the consequences of casualties. Then it studies the present situation of the law and the problems of the relevant laws and regulations on the compensation for personal injury and death at sea in our country. The second chapter analyzes the principle of imputation that should be applied to the compensation for personal injury at sea in China, because to solve the problem of compensation for personal injury at sea, we must accurately grasp the imputation principle of various kinds of personal injury at sea. It determines the main body of the responsibility, the distribution of the burden of proof and the reason of exemption and other important contents. The main content of the third chapter is to discuss the specific calculation method of the amount of compensation for personal injury at sea according to the general principle of determining the scope of liability for compensation for personal injury and injury at sea. At the same time, the method of payment of compensation and limitation of liability for compensation for personal injury at sea are also studied. The fourth chapter is about the marine personal injury compensation for mental damage. To establish the system of compensation for personal injury and mental injury is a necessary means to protect the interests of citizens' personality. In the modern society which respects the spiritual value of people, the proposal of compensation for spiritual damage embodies the protection and relief of the interests of personality and the protection of the interests of the aggrieved party. The fifth chapter is the conclusion of the article, mainly to improve the maritime personal injury and injury compensation law of some suggestions. The author pays attention to solving the complicated legal problems with general civil law theory and comparative analysis, puts forward some opinions, and puts forward some suggestions to perfect the relevant laws. The emphasis of this paper is on the relationship between the compensation for personal injury and death at sea and various kinds of insurance compensation. And the discussion that the maximum compensation limit of maritime personal injury and death should not be applied in the judicial interpretation of the Supreme people's Court. It is necessary for the development of law to perfect the liability system of maritime personal injury and injury compensation in our country, and it is also the need of maritime judicial practice.
【学位授予单位】：大连海事大学
【学位级别】：硕士
【学位授予年份】：2004
【分类号】：D923;D922.294
【引证文献】
相关博士学位论文 前2条
1 殷悦;海上人身伤亡损害赔偿法律问题研究[D];武汉大学;2009年
2 王亚男;外派船员人身伤亡损害赔偿法律问题研究[D];大连海事大学;2012年
相关硕士学位论文 前4条
1 李凌潇;国内水路旅客运输合同若干法律问题研究[D];大连海事大学;2006年
2 喻晖;海上侵权人身伤亡损害赔偿法律制度研究[D];上海海事大学;2007年
3 刘红;关于我国外派船员权利保护问题的研究[D];大连海事大学;2008年
4 梁鸿鹤;我国铁路旅客人身伤亡限额赔偿制度的法律研究[D];北京交通大学;2010年
本文编号：2155727
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