海运货物控制权之研究
发布时间：2018-08-20 08:22
【摘要】：海牙规则、海牙—维斯比规则和汉堡规则的并存，加之各国制定各自的海上货物运输法律，导致了国际海上货物运输法律统一的局面分崩离析。幸运的是，国际海事委员会(CMI)和联合国国际贸易法委员会(UNCITRAL)并没有忘记自己的职责所在，在他们的精诚合作和共同努力之下，运输法草案(DraftInstrument on Transport Law)终于诞生。运输法草案引进了数个全新的概念和制度，控制权就是其中之一。 本文主要是对海运货物控制权问题进行研究和探讨。除引言和结论之外，本文共分为五章。其中，引言部分对运输法草案的出台背景进行了粗略的描述，并对本文的主旨、内容、研究方法、研究目的等问题做了简要的介绍。第一章主要介绍控制权目前的立法情况。在论述海上货物运输法律的不统一现状的基础上，主要介绍运输法草案的立法过程和对控制权的争论这两个问题，初步提出控制权的存在有其合理性的观点。第二章是控制权的概述。首先，对运输法草案中有关控制权的规定加以介绍和评论，提出了本文为控制权所下的定义，并作了简单的说明。其次，本文对控制权的性质加以辨析，认为控制权属于实体权利、债权和形成权。再次，从现实和学理两个角度，论述了控制权存在的必要性。第三章主要针对控制权行使的相关问题。首先，分三种情况讨论了控制权权利的主体，并明确指出控制权的义务主体是承运人，实际承运人不是其义务主体的观点。其次，指出控制权的客体是行为，批驳了其客体是物的观点。再次，，讨论了控制权的行使条件、方式和控制权的消灭等问题，提出了诸如放宽控制权的行使条件以更好地发挥其积极作用等观点。在第四章中，在对中途停运权简要介绍的基础上，将控制权与中途停运权做了详细的对比，指出了两者的异同，以期对控制权有更深入的理解。第五章主要涉及的是我国控制权立法的问题。首先，对我国《合同法》和《海商法》的相关规定加以评论。在此基础上，提出在我国法律中引入控制权的必要性。在论述了立法的总体思路和需要注意的问题后，提出了我国控制权立法具体条文的建议，并加以说明。最后的结论部分，对全文的内容进行了简单的总结。 在本文的论述中，多次运用比较分析的方法，将控制权与中途停运权作了详
[Abstract]:The coexistence of the Hague rules, the Hague-Visby rules and the Hamburg rules, together with the enactment of their respective laws on the carriage of goods by sea, has led to the disintegration of the unification of the laws of the international carriage of goods by sea. Fortunately, the International Maritime Commission (CMI) and the United Nations Commission on International Trade Law (UNCITRAL) (UNCITRAL) did not forget their duty. Thanks to their sincere cooperation and joint efforts, the draft Transport Law (DraftInstrument on Transport Law) was finally born. Control is one of several new concepts and systems introduced in the draft Transport Law. This article is mainly to carry on the research and the discussion to the maritime cargo control right question. In addition to the introduction and conclusions, this paper is divided into five chapters. Among them, the introduction describes the background of the draft transport law roughly, and makes a brief introduction to the main idea, content, research method, research purpose and so on. The first chapter mainly introduces the current legislative situation of the right of control. On the basis of discussing the disunity of the law of carriage of goods by sea, this paper mainly introduces the legislative process of the draft of the law of carriage and the dispute over the right of control, and puts forward the viewpoint that the existence of the right of control has its rationality. The second chapter is an overview of the right of control. First of all, the article introduces and comments on the provisions of the draft Transport Law concerning the right of control, puts forward the definition of the right of control in this paper, and gives a brief explanation. Secondly, this paper analyzes the nature of the right of control and thinks that the right of control belongs to substantive right, creditor's right and formative right. Thirdly, it discusses the necessity of the existence of control right from the point of view of reality and theory. The third chapter focuses on the relevant issues of the exercise of control rights. Firstly, the author discusses the subject of the right of control in three situations, and points out clearly that the subject of the obligation of control is the carrier, and the actual carrier is not the subject of the obligation. Secondly, the author points out that the object of control is behavior and refutes the view that object is substance. Thirdly, the paper discusses the conditions and methods of the exercise of the right of control and the elimination of the right of control, and puts forward some viewpoints such as relaxing the conditions for the exercise of the right of control in order to play its positive role better. In the fourth chapter, on the basis of a brief introduction to the right of stoppage, the author makes a detailed comparison between the right of control and the right of stoppage, and points out the similarities and differences between the two, in order to have a deeper understanding of the right of control. The fifth chapter mainly deals with the legislation of control right in our country. First of all, the relevant provisions of China's contract Law and Maritime Law are reviewed. On this basis, the necessity of introducing the right of control in Chinese law is put forward. After discussing the general idea of legislation and the problems needing attention, this paper puts forward some suggestions on the specific provisions of the legislation of the right of control in our country, and explains it. The last part of the conclusion, the full text of the content of a simple summary. In this paper, the control right and stoppage right are discussed in detail many times by using the method of comparative analysis.
【学位授予单位】：上海海事大学
【学位级别】：硕士
【学位授予年份】：2006
【分类号】：D923.6;D922.294
本文编号：2193001
[Abstract]:The coexistence of the Hague rules, the Hague-Visby rules and the Hamburg rules, together with the enactment of their respective laws on the carriage of goods by sea, has led to the disintegration of the unification of the laws of the international carriage of goods by sea. Fortunately, the International Maritime Commission (CMI) and the United Nations Commission on International Trade Law (UNCITRAL) (UNCITRAL) did not forget their duty. Thanks to their sincere cooperation and joint efforts, the draft Transport Law (DraftInstrument on Transport Law) was finally born. Control is one of several new concepts and systems introduced in the draft Transport Law. This article is mainly to carry on the research and the discussion to the maritime cargo control right question. In addition to the introduction and conclusions, this paper is divided into five chapters. Among them, the introduction describes the background of the draft transport law roughly, and makes a brief introduction to the main idea, content, research method, research purpose and so on. The first chapter mainly introduces the current legislative situation of the right of control. On the basis of discussing the disunity of the law of carriage of goods by sea, this paper mainly introduces the legislative process of the draft of the law of carriage and the dispute over the right of control, and puts forward the viewpoint that the existence of the right of control has its rationality. The second chapter is an overview of the right of control. First of all, the article introduces and comments on the provisions of the draft Transport Law concerning the right of control, puts forward the definition of the right of control in this paper, and gives a brief explanation. Secondly, this paper analyzes the nature of the right of control and thinks that the right of control belongs to substantive right, creditor's right and formative right. Thirdly, it discusses the necessity of the existence of control right from the point of view of reality and theory. The third chapter focuses on the relevant issues of the exercise of control rights. Firstly, the author discusses the subject of the right of control in three situations, and points out clearly that the subject of the obligation of control is the carrier, and the actual carrier is not the subject of the obligation. Secondly, the author points out that the object of control is behavior and refutes the view that object is substance. Thirdly, the paper discusses the conditions and methods of the exercise of the right of control and the elimination of the right of control, and puts forward some viewpoints such as relaxing the conditions for the exercise of the right of control in order to play its positive role better. In the fourth chapter, on the basis of a brief introduction to the right of stoppage, the author makes a detailed comparison between the right of control and the right of stoppage, and points out the similarities and differences between the two, in order to have a deeper understanding of the right of control. The fifth chapter mainly deals with the legislation of control right in our country. First of all, the relevant provisions of China's contract Law and Maritime Law are reviewed. On this basis, the necessity of introducing the right of control in Chinese law is put forward. After discussing the general idea of legislation and the problems needing attention, this paper puts forward some suggestions on the specific provisions of the legislation of the right of control in our country, and explains it. The last part of the conclusion, the full text of the content of a simple summary. In this paper, the control right and stoppage right are discussed in detail many times by using the method of comparative analysis.
【学位授予单位】：上海海事大学
【学位级别】：硕士
【学位授予年份】：2006
【分类号】：D923.6;D922.294
【引证文献】
相关博士学位论文 前1条
1 姚莹;国际海上货物运输中的权利转让制度研究[D];吉林大学;2008年
相关硕士学位论文 前3条
1 刘亦薇;《鹿特丹规则》下的货物控制权制度研究[D];西南政法大学;2012年
2 姜琳;FOB贸易术语下卖方风险及其规避[D];大连海事大学;2013年
3 王延威;论海上货物运输中的货物控制权[D];大连海事大学;2013年
本文编号：2193001
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