论UNCITRAL运输法草案中的控制权
发布时间：2018-08-17 20:04
【摘要】：现行海上货物运输领域的国际公约(海牙规则、海牙—威斯比规则和汉堡规则)很不统一,在一些重大问题上彼此之间存在冲突且留有空白。这种情况给国际货物运输的顺利进行带来了困难。鉴于此,1996年联合国贸法会邀请国际海商法协会(CMI)重新审查国际海上货物运输法律制度,拟起草一个统一的能够被上述三规则接受的公约。CMI于2001年向贸法会提交了公约框架草案。贸法会在收到CMI提交的框架草案后,成立了“运输法工作组”,对公约草案的文本进行进一步的审议。草案的第11章是关于控制权的规定。这是海上运输法律第一次引入控制权的概念。 论文首先阐述了控制权的概念以及引入这一概念时,各国国内货物买卖法中有关“中途停运权、不安抗辩权”的规定对运输法草案的影响;论文的第二部分,详细地论述了控制权的权利义务主体、行使的条件、行使的方式、行使的期间、法律效果、控制权的性质、转让和法律适用等问题,并对草案相关规定背后的立法意图和可能存在的问题进行深入分析;第三部分,阐明运输法草案关于控制权的规定是对国际货物运输法律的发展,同时,也会对我国相关立法产生重要影响。 文章的第二部分是本文的主体。由于UNCI了RAL运输法草案之前的有关国际公约没有关于控制权问题的规定,类似的规定如“中途停运权”等是在各国国内的货物买卖法中加以规定的,它是卖方在买方违约时行使的一种救济权。当在运输法律关系中引入“控制权”这一救济权时,依照控制权的定义和对控制权的规定,控制权的性质是否可被大陆法现行民法理论体系中的民事权利的性质涵盖?本文认为,从草案为控制权规定的内涵看,它不是支配权、抗辩权或形成权。控制权属于请求权,但难以将其归入现有民法体系下任何一类请求权之中。在草案中,控制权是由法律规定而产生的一项权利,它是一项法定的请求权。其产生的基础是买卖合同中的买卖关系,其行使的对象是运输合同关系中的承运人。因此,控制权不是在同一种法律关系下产生和行使的请求权。本文认为,这是控制权作为一种请求权不同于现行民法理论中各民事权利性质的关键所在。只有对控制权的这种特殊性质有一个准确地认识,才能够正确的理解运输法草案对于控制权各个方面的制度设计。本文认为,如果运输法草案公约生效,大陆法系传统民法理论中有关民事权利的理论将会被突破。
[Abstract]:The current international conventions in the field of carriage of goods by sea (the Hague rules, the Hague-Visby rules and the Hamburg rules) are very inconsistent, and there are conflicts and gaps between them on some important issues. This situation brings difficulties to the smooth international transport of goods. In view of this, in 1996, the United Nations Trade Law Commission invited the International Maritime Law Association (CMI) to re-examine the legal regime for the international carriage of goods by sea and to draft a uniform convention that could be accepted by the three rules mentioned above. The draft framework of the convention was submitted to the Commission in 2001. After receiving the draft framework submitted by CMI, the Trade Law Commission established a working Group on Transport Law to further consider the text of the draft convention. Chapter 11 of the draft deals with control rights. This is the first time the law of maritime transport introduced the concept of control. Firstly, the paper expounds the concept of control and the influence of the provisions of the domestic law on the right of stoppage and the right of restless defense to the draft transport law when it is introduced into the domestic law of sale of goods. The rights and obligations of the right of control, the conditions of its exercise, the mode of its exercise, the legal effect, the nature of the right of control, the transfer and the application of the law are discussed in detail. The legislative intent and possible problems behind the relevant provisions of the draft are analyzed in depth. The third part clarifies that the provisions of the draft Transport Law on the right of control are the development of the law on the international carriage of goods, at the same time, Also can produce the important influence to our country related legislation. The second part of the article is the main body of this paper. Since the relevant international conventions prior to UNCI's draft RAL Transport Law have no provisions on the right of control, similar provisions such as "right of stoppage" are provided for in the domestic laws of various countries on the sale of goods. It is a right of remedy exercised by the seller in case of breach of contract by the buyer. When the right of "right of control" is introduced into the legal relationship of transport, according to the definition of the right of control and the regulation of the right of control, can the nature of the right of control be covered by the nature of civil rights in the current theoretical system of civil law? This paper holds that the draft is not the right of domination, defense or formation from the point of view of the connotation of the regulation of the right of control. The right of control belongs to the right of claim, but it is difficult to be classified into any kind of right of claim under the existing civil law system. In the draft, the right of control is a right created by law, and it is a statutory right of claim. The basis of its production is the sale and purchase relationship in the contract of sale, and the object of its exercise is the carrier in the contract of carriage. Therefore, the right of control is not the right of claim arising and exercising under the same legal relationship. This paper holds that this is the key to the nature of the right of control as a right of claim, which is different from the civil rights in the current theory of civil law. Only if we have an accurate understanding of the special nature of the right of control, can we correctly understand the system design of the draft law of transport for all aspects of the right of control. This paper holds that if the draft convention on transport law comes into effect, the theory of civil rights in the traditional civil law theory of civil law system will be broken through.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2005
【分类号】：D996
本文编号：2188748
[Abstract]:The current international conventions in the field of carriage of goods by sea (the Hague rules, the Hague-Visby rules and the Hamburg rules) are very inconsistent, and there are conflicts and gaps between them on some important issues. This situation brings difficulties to the smooth international transport of goods. In view of this, in 1996, the United Nations Trade Law Commission invited the International Maritime Law Association (CMI) to re-examine the legal regime for the international carriage of goods by sea and to draft a uniform convention that could be accepted by the three rules mentioned above. The draft framework of the convention was submitted to the Commission in 2001. After receiving the draft framework submitted by CMI, the Trade Law Commission established a working Group on Transport Law to further consider the text of the draft convention. Chapter 11 of the draft deals with control rights. This is the first time the law of maritime transport introduced the concept of control. Firstly, the paper expounds the concept of control and the influence of the provisions of the domestic law on the right of stoppage and the right of restless defense to the draft transport law when it is introduced into the domestic law of sale of goods. The rights and obligations of the right of control, the conditions of its exercise, the mode of its exercise, the legal effect, the nature of the right of control, the transfer and the application of the law are discussed in detail. The legislative intent and possible problems behind the relevant provisions of the draft are analyzed in depth. The third part clarifies that the provisions of the draft Transport Law on the right of control are the development of the law on the international carriage of goods, at the same time, Also can produce the important influence to our country related legislation. The second part of the article is the main body of this paper. Since the relevant international conventions prior to UNCI's draft RAL Transport Law have no provisions on the right of control, similar provisions such as "right of stoppage" are provided for in the domestic laws of various countries on the sale of goods. It is a right of remedy exercised by the seller in case of breach of contract by the buyer. When the right of "right of control" is introduced into the legal relationship of transport, according to the definition of the right of control and the regulation of the right of control, can the nature of the right of control be covered by the nature of civil rights in the current theoretical system of civil law? This paper holds that the draft is not the right of domination, defense or formation from the point of view of the connotation of the regulation of the right of control. The right of control belongs to the right of claim, but it is difficult to be classified into any kind of right of claim under the existing civil law system. In the draft, the right of control is a right created by law, and it is a statutory right of claim. The basis of its production is the sale and purchase relationship in the contract of sale, and the object of its exercise is the carrier in the contract of carriage. Therefore, the right of control is not the right of claim arising and exercising under the same legal relationship. This paper holds that this is the key to the nature of the right of control as a right of claim, which is different from the civil rights in the current theory of civil law. Only if we have an accurate understanding of the special nature of the right of control, can we correctly understand the system design of the draft law of transport for all aspects of the right of control. This paper holds that if the draft convention on transport law comes into effect, the theory of civil rights in the traditional civil law theory of civil law system will be broken through.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2005
【分类号】：D996
【引证文献】
相关硕士学位论文 前3条
1 吴琼;论海上货物运输中的货物控制权[D];中国政法大学;2011年
2 王中领;论海运中途停运权[D];上海海事大学;2006年
3 王凯;论海运中途停运权[D];大连海事大学;2012年
，本文编号：2188748
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