浅析我国法律项下的海上货物留置权
发布时间：2018-08-21 09:38
【摘要】：海上货物留置权渊源于各国际公约与国际惯例,在英美法系中系对承运人权利的一种救济,并非完全隶属于留置权之概念。但在我国法律项下,留置权属于物权法下之概念,故具有物权属性,海上货物留置权既归属于留置权亦应当适用物权之相关理论。然而鉴于海上货物运输活动往往涉及多方当事人且运输合同尤其是国际运输合同更涉及多国法律甚至国际公约、国际惯例,因此在具体司法实践中,如果将海上货物留置权完全按照普通留置权来解释、来适用,则势必有其局限与不妥之处。本文结合国内外的立法与学说,试指出海上货物留置权较普通留置权的不同之处,及海上货物留置权在我国应当如何理解,并对我国目前海商法对海上货物留置权适用中的不足提出改进意见。除了引言和结语外,本论文分为两个部分。本文第一章首先引述各国立法,对留置权的起源及概念加以阐述并简要分析,因留置权的起源影响到后续各国法律发展对留置权立法的不同倾向,各国对留置权性质系债权抑或物权所持观点各有不同:以法国、德国为代表的国家将留置权视为债权的一种延伸;而以瑞士、日本、我国台湾为代表的国家则将留置权视为物权的一种,我国亦认可留置权为物权。其次,对留置权法律特征进行分析,就其物权性、法定性、从属性、不可分性、二次效力性逐一展开,留置权的法律特征亦与留置权的成立要件有关;最后重点分析留置权的成立要件,尤其对于其积极要件着重分析,例如债权人对留置物“占有”的定义,留置物的范围,债权与留置物的牵连性,债权清偿期是否届满等,这些要件是否成立直接决定债权人的留置权是否成立,是否可以执行。本文第二章主要分写海上货物留置权较一般留置权的突破之处:首先,留置物的所有权不应仅局限于债务人,鉴于海上运输的特殊性,不应当给承运人设定过重的负担,若固执于货物所有权应归属于债务人,则该海上货物留置权对于承运人而言在很大程度上形同虚设;其次,对债权与留置物牵连性的突破,因海上货物运输合同关系绝大多数情况下为商事主体之间的合同关系,而各国立法已认可商事留置权中对于债权与留置物牵连性的突破,故此在海上货物留置权中,只要符合商事留置权的情形,亦应当认可留置物不必与相关债权具有牵连关系;第三,对于海上货物留置权担保之范围作出界定,海上货物留置权用以担保运费、共同海损分摊是毋庸置疑的,本文意图对海上货物留置权所担保的滞期费作出进一步的分析,并列出相关限制条件;第四,对海上货物运输承运人就提单等运输单证是否可以留置进行分析,海商法作为特别法将“货物”明确为海上货物留置权的标的物,但这一法律规定并非限定承运人不能留置债务人的运输单证;第五,对海上货物留置权的执行进行讨论,在我国海上货物留置权的执行涉及法院及海关,相关法律规定仍有冲突,承运人在执行其留置权的过程中时常遭遇困难,经常是可以留置货物,却无法变价从而优先受偿,因此我国法律法规应就此弊端加以完善。
[Abstract]:Lien on cargo by sea originates from international conventions and practices. It is a relief to the carrier's rights in Anglo-American legal system and is not entirely subordinate to the concept of lien. However, since the carriage of goods by sea often involves many parties and the contract of carriage, especially the international contract of carriage, involves many countries'laws and even international conventions, international practice, it is bound to apply if the lien on goods by sea is fully interpreted in accordance with the ordinary lien in specific judicial practice. Combining with the legislation and theories at home and abroad, this paper tries to point out the differences between the lien on cargo by sea and the ordinary lien on cargo by sea, and how to understand the lien on cargo by sea in China. This paper is divided into two parts. The first chapter of this paper quotes the legislation of various countries, expounds the origin and concept of lien, and briefly analyzes it. Because the origin of lien affects the different tendencies of the legislation of lien in the subsequent legal development of various countries, different countries hold different views on the nature of lien as creditor's right or real right: France, Germany, Germany. Countries represented by China regard lien as an extension of creditor's rights, while countries represented by Switzerland, Japan and Taiwan regard it as a kind of real right, and China also recognizes it as a real right. The legal characteristics of the lien are also related to the elements of the establishment of the lien. Finally, it focuses on the elements of the establishment of the lien, especially on its positive elements, such as the definition of the "possession" of the lien by the creditor, the scope of the lien, the involvement of the creditor's right with the lien, the expiration of the debt liquidation period, and so on. Chapter 2 of this article mainly points out the breakthrough of lien on goods by sea compared with general lien. Firstly, the ownership of the lien should not be limited to the debtor. In view of the particularity of carriage by sea, the carrier should not be given an excessive burden, if stubborn in the goods. If the ownership belongs to the debtor, the lien on the goods by sea is to a great extent null and void to the carrier; secondly, the breakthrough of the relationship between creditor's right and the lien is due to the fact that most of the contractual relations in the carriage of goods by sea are the contractual relations between the commercial subjects, and the legislation of various countries has recognized the debt in the lien on commercial affairs. Therefore, as long as the lien meets the circumstances of the commercial lien, it should be recognized that the lien does not have to be related to the relevant creditor's rights. Thirdly, the scope of the lien on goods at sea is defined, and the lien on goods at sea is used to guarantee the freight, so it is unnecessary to apportion the general average. Doubtless, this article intends to make a further analysis of the demurrage charges guaranteed by the lien on goods on the sea, and lists the relevant restrictive conditions. Fourthly, it analyzes whether the carrier of goods on the sea can lie on the transport documents such as bills of lading. As a special law, the "goods" are defined as the subject matter of the lien on goods on the sea, but This legal provision does not limit the carrier's inability to retain the debtor's transport document; fifthly, the enforcement of the lien on goods at sea is discussed. In China, the enforcement of the lien on goods at sea involves the courts and customs, and the relevant legal provisions are still in conflict. The carrier often encounters difficulties in the process of enforcing his lien, which is often possible. If goods are retained, they can not be changed in price so that they can be compensated first. Therefore, China's laws and regulations should be perfected.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923.2
本文编号：2195306
[Abstract]:Lien on cargo by sea originates from international conventions and practices. It is a relief to the carrier's rights in Anglo-American legal system and is not entirely subordinate to the concept of lien. However, since the carriage of goods by sea often involves many parties and the contract of carriage, especially the international contract of carriage, involves many countries'laws and even international conventions, international practice, it is bound to apply if the lien on goods by sea is fully interpreted in accordance with the ordinary lien in specific judicial practice. Combining with the legislation and theories at home and abroad, this paper tries to point out the differences between the lien on cargo by sea and the ordinary lien on cargo by sea, and how to understand the lien on cargo by sea in China. This paper is divided into two parts. The first chapter of this paper quotes the legislation of various countries, expounds the origin and concept of lien, and briefly analyzes it. Because the origin of lien affects the different tendencies of the legislation of lien in the subsequent legal development of various countries, different countries hold different views on the nature of lien as creditor's right or real right: France, Germany, Germany. Countries represented by China regard lien as an extension of creditor's rights, while countries represented by Switzerland, Japan and Taiwan regard it as a kind of real right, and China also recognizes it as a real right. The legal characteristics of the lien are also related to the elements of the establishment of the lien. Finally, it focuses on the elements of the establishment of the lien, especially on its positive elements, such as the definition of the "possession" of the lien by the creditor, the scope of the lien, the involvement of the creditor's right with the lien, the expiration of the debt liquidation period, and so on. Chapter 2 of this article mainly points out the breakthrough of lien on goods by sea compared with general lien. Firstly, the ownership of the lien should not be limited to the debtor. In view of the particularity of carriage by sea, the carrier should not be given an excessive burden, if stubborn in the goods. If the ownership belongs to the debtor, the lien on the goods by sea is to a great extent null and void to the carrier; secondly, the breakthrough of the relationship between creditor's right and the lien is due to the fact that most of the contractual relations in the carriage of goods by sea are the contractual relations between the commercial subjects, and the legislation of various countries has recognized the debt in the lien on commercial affairs. Therefore, as long as the lien meets the circumstances of the commercial lien, it should be recognized that the lien does not have to be related to the relevant creditor's rights. Thirdly, the scope of the lien on goods at sea is defined, and the lien on goods at sea is used to guarantee the freight, so it is unnecessary to apportion the general average. Doubtless, this article intends to make a further analysis of the demurrage charges guaranteed by the lien on goods on the sea, and lists the relevant restrictive conditions. Fourthly, it analyzes whether the carrier of goods on the sea can lie on the transport documents such as bills of lading. As a special law, the "goods" are defined as the subject matter of the lien on goods on the sea, but This legal provision does not limit the carrier's inability to retain the debtor's transport document; fifthly, the enforcement of the lien on goods at sea is discussed. In China, the enforcement of the lien on goods at sea involves the courts and customs, and the relevant legal provisions are still in conflict. The carrier often encounters difficulties in the process of enforcing his lien, which is often possible. If goods are retained, they can not be changed in price so that they can be compensated first. Therefore, China's laws and regulations should be perfected.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923.2
【参考文献】
相关期刊论文 前1条
1 邹海林;;留置权基本问题研究[J];法学研究;1991年02期
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