海上货物运输中承运人延迟损失赔偿责任制研究
发布时间：2018-10-23 13:30
【摘要】： 随着世界经济和国际海运业的发展，要求统一和完善承运人责任制度 的呼声越来越高。作为承运人责任制度的一个方面，承运人延迟损失赔偿 责任制，日益受到各国海商立法的重视。我国在制定《海商法》时，顺应 了时代的要求，将承运人延迟损失赔偿责任制做出了明确规定。但同时应 当看到，我国《海商法》关于此的规定，还存在一些不完善之处。本篇论 文在分析延迟损失的基本概念、性质、产生原因、赔偿依据、赔偿原则及 赔偿范围的基础上，指出我国在适用中存在的问题，并提出修改意见，以 期对完善我国承运人延迟损失赔偿责任制提供一点借鉴。本篇论文共分四 大部分： 第一部分介绍延迟损失的基本理论，包括论文的第一、二、三章。着 重阐述延迟损失的概念、性质、产生原因及承运人赔偿责任的认定依据。 延迟损失是货物的法定损害形态之一，有着较强的时间性。它既包括 货物的物质损失，也包括货物的经济损失，且多数情况下表现为经济损失。 具有特殊性和间接性的特点，因此其损失难以确定。 在实务中，引起延迟损失的原因很多，论文的第二章着重分析了船舶 不适航及绕航这两个原因，同时指出预借、倒签提单所产生的经济损失同 延迟经济损失的区别。 认定承运人延迟损失赔偿责任，须同时具备四项要件，即损害事实的 存在、行为的违法性、行为和损害事实之间的因果关系、行为人的主观过 错。论文的第三章从承运人违反运输合同和法律或公约的规定这两个方面， 着重分析承运人行为的违法性。 第二部分是关于延迟损失的赔偿问题，包括论文的第四、五、六章。 主要分析延迟损失的赔偿原则及赔偿范围。是本篇论文的重点。 论文的第四章，从民法和货运法的角度，介绍各国法律、公约关于经 济损失的规定，，并结合大量案例，得出延迟经济损失可以获赔的结论。从 而引出延迟损失的赔偿原则和赔偿范围的问题。 公约和我国《海商法》没有明确规定延迟损失的赔偿原则，因此，实 践中如何确定赔偿范围，争议颇多。论文的第五章重点阐述了合理预见原 则、减轻损失原则及近因原则，将延迟损失的赔偿限制在一定的范围内。 海上货物运输中承运人延迟损失赔偿责任制研究 这样，既能保证承运人就延迟损失给予充分的补偿，又同我国承运人现有 的经济能力及保险制度的现状相适应，是比较符合客观实际的做法。 论文的第六章介绍延迟损失的计算方法，包括市价损失、利息损失、 利润损失、停工损失、责任损失及必要的花费的计算。 第三部分为论文的第七章，主要介绍承运人的免责抗辩和限责抗辩。 延迟损失的范围确定以后，并不意味着货主一定能就赔偿范围内的全 部损失索赔成功。承运人往往借助法律上和合同上的免责、限责条款进行 抗辩。 第四部分，即论文的第八章，为结论。着重分析我国承运人延迟损失 赔偿责任在适用中存在的问题，并就《海商法》的规定提出完善建议。
[Abstract]:With the development of world economy and international shipping industry, it is required to unify and perfect the carrier's responsibility system The voice of the carrier is getting higher and higher. As an aspect of the carrier's liability system carrier's delay in damages Responsibility system, increasingly affected by the maritime business of each country The importance of legislation. China's compliance with the development of the Maritime Law. At the time of time At the same time, the carrier's delay of compensation responsibility system was clearly defined. It shall be When we see, China's Maritime Law> Provisions on this Law, there are some non-In this paper, the basic concept of delay loss is analyzed in this paper., Nature, reason, basis of compensation, principle of compensation and scope of compensation on the basis of This paper points out the existing problems in the application, and puts forward some suggestions. This paper provides some reference for perfecting the compensation responsibility system for the delay of the carrier's delay in our country. The text is divided into four parts: The first This paper introduces the basic theory of delay loss, including the first, second and third chapters of the thesis. The concept, nature and reason of delay loss are expounded. The basis for the determination of the liability of the carrier. The delay is the goods One of the legal damage patterns of an object, which has a strong compatibility. It includes: the material loss of the goods, It also includes the economic loss of the goods, and most cases show economic losses. Because of its particularity and indirectness, its loss is difficult to determine. In practice, there are many reasons for delay loss, and the second chapter of this paper focuses on the analysis The ship does not The two reasons for airworthiness and winding are also pointed out, and the economic loss caused by pre-borrowing and reverse bill of lading is also pointed out. zone with delayed economic losses don't. It is concluded that the carrier's liability for delay in damages shall be accompanied by four elements, i.e., damage The existence of facts, the illegality, the act and the damage of the facts. room Causality, actor's subjective. B. The third chapter of the paper violates the provisions of the contract of carriage and the law or the convention from the carrier in two aspect, Reanalysis the illegality of the carrier's behavior. the second part is the question of compensation for delay losses, including the fourth part of the paper, V. Chapter VI. Main Analysis Delay The principle of compensation and the scope of compensation are the focus of this paper. Chapter 4, from the point of view of civil law and freight law, introduces the laws of various countries. The provision of economic losses, combined with a large number of cases, leads to delays. The conclusion that economic loss can be lost. The principle of compensation for the loss of delay and the scope of compensation. About and China's Code of Maritime Law> does not specify the principle of compensation for delay losses, therefore, real How to determine the scope of compensation and the dispute is much more controversial in the paper. point description In the case of reasonable foresight, in ord to reduce that principle of los and the principle of proximity, The compensation for the loss of delay is limited to a certain extent.
【学位授予单位】：上海海运学院
【学位级别】：硕士
【学位授予年份】：2000
【分类号】：D996
本文编号：2289403
[Abstract]:With the development of world economy and international shipping industry, it is required to unify and perfect the carrier's responsibility system The voice of the carrier is getting higher and higher. As an aspect of the carrier's liability system carrier's delay in damages Responsibility system, increasingly affected by the maritime business of each country The importance of legislation. China's compliance with the development of the Maritime Law. At the time of time At the same time, the carrier's delay of compensation responsibility system was clearly defined. It shall be When we see, China's Maritime Law> Provisions on this Law, there are some non-In this paper, the basic concept of delay loss is analyzed in this paper., Nature, reason, basis of compensation, principle of compensation and scope of compensation on the basis of This paper points out the existing problems in the application, and puts forward some suggestions. This paper provides some reference for perfecting the compensation responsibility system for the delay of the carrier's delay in our country. The text is divided into four parts: The first This paper introduces the basic theory of delay loss, including the first, second and third chapters of the thesis. The concept, nature and reason of delay loss are expounded. The basis for the determination of the liability of the carrier. The delay is the goods One of the legal damage patterns of an object, which has a strong compatibility. It includes: the material loss of the goods, It also includes the economic loss of the goods, and most cases show economic losses. Because of its particularity and indirectness, its loss is difficult to determine. In practice, there are many reasons for delay loss, and the second chapter of this paper focuses on the analysis The ship does not The two reasons for airworthiness and winding are also pointed out, and the economic loss caused by pre-borrowing and reverse bill of lading is also pointed out. zone with delayed economic losses don't. It is concluded that the carrier's liability for delay in damages shall be accompanied by four elements, i.e., damage The existence of facts, the illegality, the act and the damage of the facts. room Causality, actor's subjective. B. The third chapter of the paper violates the provisions of the contract of carriage and the law or the convention from the carrier in two aspect, Reanalysis the illegality of the carrier's behavior. the second part is the question of compensation for delay losses, including the fourth part of the paper, V. Chapter VI. Main Analysis Delay The principle of compensation and the scope of compensation are the focus of this paper. Chapter 4, from the point of view of civil law and freight law, introduces the laws of various countries. The provision of economic losses, combined with a large number of cases, leads to delays. The conclusion that economic loss can be lost. The principle of compensation for the loss of delay and the scope of compensation. About and China's Code of Maritime Law> does not specify the principle of compensation for delay losses, therefore, real How to determine the scope of compensation and the dispute is much more controversial in the paper. point description In the case of reasonable foresight, in ord to reduce that principle of los and the principle of proximity, The compensation for the loss of delay is limited to a certain extent.
【学位授予单位】：上海海运学院
【学位级别】：硕士
【学位授予年份】：2000
【分类号】：D996
【引证文献】
相关硕士学位论文 前3条
1 马贻;海运提单风险管理研究[D];大连海事大学;2010年
2 李研;倒签提单法律性质研究[D];南昌大学;2010年
3 王谚飞;倒签提单下承运人赔偿责任研究[D];大连海事大学;2012年
本文编号：2289403
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