国际海上货物运输中控制权研究
发布时间：2018-09-15 05:34
【摘要】：关于控制权的内容、性质、主体及行使等问题，目前学界颇有争议。本文以UNCITRAL运输法草案中控制权的规定为基础，结合各国现行相关法律规定，对国际海上货物运输中的控制权问题进行研究分析，提出如下观点： 第一，控制权是指在运输过程中，在承运人责任期间内，依据运输合同，指示缔约承运人对货物实施某种行为的权利。具体包括：A．依据运输合同条款，对货物作出指示及修改指示(不构成对运输合同的根本变更)；B．中止运输；C．货物到达目的地前要求交付货物；D．改变收货人。该权利的规定不但适用于签发传统提单的运输，而且适用于签发电子提单和海运单的情况。 第二，在有关控制权的属性的诸多学说中，笔者支持请求权说，且认为控制权属债上请求权。 第三，本文讨论的是国际海上货物运输中的控制权，通过比较它与其他运输方式下的货物控制权、与中途停运权、与《合同法》第308条的关系，更加明确了控制权的特点。 第四，，由于海上货物运输有其特殊性，控制权的行使主体、行使方法和丧失原因则根据是否签发可转让的运输单证而不同，且控制权的行使以指示具有被执行的合理可能为前提。 最后，本文根据我国目前的相关立法现状，建议《海商法》中增加控制权的完整规定；建议规定货物运输合同基本条款的格式，以避免纠纷；建议我国法院进一步承认承托双方当事人的保函的效力。
[Abstract]:The content, nature, subject and exercise of the right of control are controversial. Based on the regulation of the right of control in the draft of the UNCITRAL Transport Law, this paper studies and analyzes the control rights in the international carriage of goods by sea in combination with the relevant laws and regulations of various countries. The following points are raised: first, the right of control refers to the contract of carriage during the course of carriage, during the period of the carrier's responsibility, The right to instruct the contracting carrier to perform an act in respect of the goods. Specific include: A. under the terms of the contract of carriage, give instructions to the goods and modify instructions (which do not constitute a fundamental change to the contract of carriage) B. stop the shipment and request delivery of the goods before they arrive at their destination. Change the consignee. This right applies not only to the issue of traditional bills of lading, but also to the issuance of electronic bills of lading and sea waybills. Secondly, in many theories about the attribute of control right, the author supports the claim right theory, and holds that the control right belongs to the claim right on debt. Thirdly, this paper discusses the right of control in the international carriage of goods by sea. By comparing it with the right of control of goods under other modes of transport, with the right of stoppage and with article 308 of the contract Law, the characteristics of the right of control are more clearly defined. Fourthly, because of the particularity of the carriage of goods by sea, the exercise of the right of control, the method of exercise and the reasons for its loss are different depending on whether a negotiable transport document is issued, And the exercise of the right of control is based on the indication that there is a reasonable possibility to be executed. Finally, according to the current legislative situation of our country, this paper suggests that the complete regulation of the right of control should be added to the Maritime Law, and the form of the basic clauses of the contract of carriage of goods should be stipulated in order to avoid disputes. It is suggested that the court of our country further recognize the validity of the guarantee of both parties.
【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】：D996.19
本文编号：2243928
[Abstract]:The content, nature, subject and exercise of the right of control are controversial. Based on the regulation of the right of control in the draft of the UNCITRAL Transport Law, this paper studies and analyzes the control rights in the international carriage of goods by sea in combination with the relevant laws and regulations of various countries. The following points are raised: first, the right of control refers to the contract of carriage during the course of carriage, during the period of the carrier's responsibility, The right to instruct the contracting carrier to perform an act in respect of the goods. Specific include: A. under the terms of the contract of carriage, give instructions to the goods and modify instructions (which do not constitute a fundamental change to the contract of carriage) B. stop the shipment and request delivery of the goods before they arrive at their destination. Change the consignee. This right applies not only to the issue of traditional bills of lading, but also to the issuance of electronic bills of lading and sea waybills. Secondly, in many theories about the attribute of control right, the author supports the claim right theory, and holds that the control right belongs to the claim right on debt. Thirdly, this paper discusses the right of control in the international carriage of goods by sea. By comparing it with the right of control of goods under other modes of transport, with the right of stoppage and with article 308 of the contract Law, the characteristics of the right of control are more clearly defined. Fourthly, because of the particularity of the carriage of goods by sea, the exercise of the right of control, the method of exercise and the reasons for its loss are different depending on whether a negotiable transport document is issued, And the exercise of the right of control is based on the indication that there is a reasonable possibility to be executed. Finally, according to the current legislative situation of our country, this paper suggests that the complete regulation of the right of control should be added to the Maritime Law, and the form of the basic clauses of the contract of carriage of goods should be stipulated in order to avoid disputes. It is suggested that the court of our country further recognize the validity of the guarantee of both parties.
【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】：D996.19
【引证文献】
相关硕士学位论文 前5条
1 杨景章;论UNCITRAL运输法草案中的控制权[D];中国政法大学;2005年
2 李晓霞;海运货物控制权研究[D];中国政法大学;2006年
3 刘超;海运货物控制权之研究[D];上海海事大学;2006年
4 郝静;国际海运货物控制权研究[D];西南政法大学;2007年
5 董水清;结合海上货物运输合同谈海上货物控制权[D];华东政法大学;2009年
本文编号：2243928
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