关于国际航空承运人对旅客损害赔偿责任限额发展趋势的研究
发布时间：2018-09-01 07:33
【摘要】： 在有着悠久历史的海商法中,承运人责任限额是一个很重要的组成部分。诞生时间还不足百年的国际航空法在诸多方面借鉴了海商法的经验,也包括承运人责任限额这个重要元素。自从1929年《华沙公约》生效以来,责任限额这个字眼便开始在国际航空运输法中扮演着不可或缺的角色。这并非仅是对海商法的机械模仿,而有其产生的历史原因、经济原因、制度原因、内部原因、外部原因和根本原因。尤其是在《华沙公约》刚诞生的时代,飞行仍然是一项具有高度不确定性、危险性以及毫无疑问的高昂成本的运输方式,责任限额的出现有着其必然性,《华沙公约》更为保护作为幼稚产业的航空承运人的利益而非旅客利益也是理所当然的。但是自从《华沙公约》作为第一个国际航空私法的公约产生后的几十年来,关于承运人对旅客损害赔偿责任限额高低存废的争议便不曾平息过。包括《华沙公约》在内的华沙体制文件对责任限额的规定都在不断变化,这种复杂局面使得《华沙公约》在国际航空私法上的统一性不复存在。如今航空科学技术的高度发展,人类生活水平的不断提高、人本意识的日益增强、《华沙公约》的不断革新、各国家对责任限额制度的单边行动的突破、《1999年蒙特利尔公约》的出台,都反映出承运人对旅客损害赔偿责任限额的存在已经不再是保护而更多是障碍,责任限额的取消已经在所难免。《1999年蒙特利尔公约》对于旅客伤亡责任限额制度进行了大幅变更:首先,设立了一个关于旅客伤亡责任限制的双梯度原则体制。在第一梯度下,航空承运人承担严格责任,赔偿限额为100000特别提款权;在第二梯度下,航空承运人承担过错推定责任,没有最高限额的限制。其次,设立了一个“自动升降梯条款”,五年进行一次限额复审,使责任限额的数字可以根据通货膨胀和其他经济性质的变化而相应进行更新。《1999年蒙特利尔公约》的生效,朝着无限额责任更近了一步,它积极吸收了华沙体制历次改革中的进步成果,顺应了当代国际航空运输责任立法的发展趋势,为国际航空运输复归到统一的责任规则体系,从而为稳定国际航空运输责任制度的有效运行提供了现实和可行的制度设计。我国借鉴《1999年蒙特利尔公约》的相关内容,制定了新的《国内航空运输承运人赔偿责任限额规定》,大幅度提高了国内航空运输承运人的赔偿责任限额,以适应新形势。种种情况表明,“农夫补贴国王”这个产生于上世纪六十年代的反对高责任限额的说法已经摇摇欲坠,不堪一击,承运人对旅客损害赔偿责任限额的取消是大势所趋。
[Abstract]:In the long history of maritime law, the carrier liability limit is a very important part. The international air law, which has been born for less than a hundred years, draws lessons from the experience of maritime law in many aspects, including the important element of carrier liability limit. Since the Warsaw Convention came into force in 1929, the term limitation has played an indispensable role in international air transport law. This is not only a mechanical imitation of maritime law, but also has its historical, economic, institutional, internal, external and fundamental reasons. Especially in the early days of the Warsaw Convention, flight is still a highly uncertain, dangerous and unquestionably costly mode of transport, The emergence of liability limits has its inevitability, and it is natural that the Warsaw Convention protects the interests of air carriers rather than passengers as a childish industry. However, since the Warsaw Convention came into being as the first convention on private international aviation law, the controversy about the limitation of carrier's liability for damages to passengers has not been settled. The provisions of the Warsaw institutional documents including the Warsaw Convention on liability limits are constantly changing. This complex situation makes the unity of the Warsaw Convention in the international aviation private law no longer exist. Today, with the development of aviation science and technology, the continuous improvement of human living standards, the increasing awareness of humanism, and the constant innovation of the Warsaw Convention, The breakthrough of unilateral actions of each country to the liability limit system and the introduction of the Montreal Convention in 1999 all reflect that the existence of the carrier's limit of liability for damages to passengers is no longer a protection but more an obstacle. It is inevitable to cancel the liability limit. The Montreal Convention of 1999 has greatly changed the limitation system of passenger casualty liability. Firstly, a two-gradient principle system on the limitation of passenger casualty liability has been established. Under the first gradient, the air carrier is strictly liable, with a limit of 100000 SDRs; in the second gradient, the carrier assumes the presumption of fault liability without the limitation of the maximum limit. Secondly, an "escalator clause" has been established, with a five-year quota review, so that the liability limit figures can be updated accordingly in the light of inflation and other changes in the economic nature. The Montreal Convention entered into force in 1999, It has actively absorbed the progressive achievements of the previous reforms in Warsaw's system, complied with the development trend of contemporary international air transport liability legislation, and returned international air transport to a unified liability rule system. Therefore, it provides a realistic and feasible system design for stabilizing the effective operation of international air transport liability system. Drawing on the relevant contents of the Montreal Convention of 1999, China has formulated a new limitation of liability for domestic air carriers, which has greatly increased the limit of liability of domestic air carriers in order to adapt to the new situation. Circumstances suggest that the "farmer subsidy to the king", an argument against high liability limits that emerged in the 1960s, is teetering and fragile, and the removal of the carrier's limits on passengers' liability for damages is a general trend.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2008
【分类号】：D993.4
本文编号：2216531
[Abstract]:In the long history of maritime law, the carrier liability limit is a very important part. The international air law, which has been born for less than a hundred years, draws lessons from the experience of maritime law in many aspects, including the important element of carrier liability limit. Since the Warsaw Convention came into force in 1929, the term limitation has played an indispensable role in international air transport law. This is not only a mechanical imitation of maritime law, but also has its historical, economic, institutional, internal, external and fundamental reasons. Especially in the early days of the Warsaw Convention, flight is still a highly uncertain, dangerous and unquestionably costly mode of transport, The emergence of liability limits has its inevitability, and it is natural that the Warsaw Convention protects the interests of air carriers rather than passengers as a childish industry. However, since the Warsaw Convention came into being as the first convention on private international aviation law, the controversy about the limitation of carrier's liability for damages to passengers has not been settled. The provisions of the Warsaw institutional documents including the Warsaw Convention on liability limits are constantly changing. This complex situation makes the unity of the Warsaw Convention in the international aviation private law no longer exist. Today, with the development of aviation science and technology, the continuous improvement of human living standards, the increasing awareness of humanism, and the constant innovation of the Warsaw Convention, The breakthrough of unilateral actions of each country to the liability limit system and the introduction of the Montreal Convention in 1999 all reflect that the existence of the carrier's limit of liability for damages to passengers is no longer a protection but more an obstacle. It is inevitable to cancel the liability limit. The Montreal Convention of 1999 has greatly changed the limitation system of passenger casualty liability. Firstly, a two-gradient principle system on the limitation of passenger casualty liability has been established. Under the first gradient, the air carrier is strictly liable, with a limit of 100000 SDRs; in the second gradient, the carrier assumes the presumption of fault liability without the limitation of the maximum limit. Secondly, an "escalator clause" has been established, with a five-year quota review, so that the liability limit figures can be updated accordingly in the light of inflation and other changes in the economic nature. The Montreal Convention entered into force in 1999, It has actively absorbed the progressive achievements of the previous reforms in Warsaw's system, complied with the development trend of contemporary international air transport liability legislation, and returned international air transport to a unified liability rule system. Therefore, it provides a realistic and feasible system design for stabilizing the effective operation of international air transport liability system. Drawing on the relevant contents of the Montreal Convention of 1999, China has formulated a new limitation of liability for domestic air carriers, which has greatly increased the limit of liability of domestic air carriers in order to adapt to the new situation. Circumstances suggest that the "farmer subsidy to the king", an argument against high liability limits that emerged in the 1960s, is teetering and fragile, and the removal of the carrier's limits on passengers' liability for damages is a general trend.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2008
【分类号】：D993.4
【参考文献】
相关期刊论文 前1条
1 任秋娟;国际航空客运旅客伤亡承运人责任制度及对我国的影响[J];山东理工大学学报(社会科学版);2005年04期
，本文编号：2216531
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