交货托运人法律问题研究
发布时间：2018-11-02 08:59
【摘要】： 托运人作为海上货物运输合同的原始当事方,其在国际海事公约以及各国海事立法规定中都占据着显著的位置。1924年《统一提单的若干法律规则的国际公约》(以下简称“《海牙规则》”)、《1968年布鲁塞尔议定书——有关修改1924年8月25日在布鲁塞尔签订的统一提单的若干法律规定的国际公约的议定书》(以下简称“《维斯比规则》”)同《1978年联合国海上货物运输公约》(以下简称“《汉堡规则》”)采取不同的立法模式,我国《海商法》更多地借鉴了后者的相关规定。然而,海事司法实践中的诸多问题使得我们应当重新思索一下,到底什么样的立法设计才能更好地协调运输合同当事方之间的关系,合理地划分各主体之间的权利、义务与责任。最新的《联合国国际贸易法委员会-[全程或部分][海上]货物运输公约草案》(以下简称“《UNCITRAL运输法草案》”)也是在寻求一种新的立法模式,试图融合国际公约与各国立法的不同规定。 本文正是在这样的历史背景之下,在比较分析外国与我国托运人法律制度的区别与联系的基础之上,认为可以创设“交货托运人”的概念,从而使得托运人、交货托运人、提单持有人与收货人之间达到一个和谐共存的立法现状。本文总共有五章内容:第一章对交货托运人的法律地位进行了分析,主要针对国际公约以及各国立法关于托运人制度的不同规定,结合我国《海商法》的规定,认为有理由单独创设交货托运人的概念并对其构成要件、识别等问题进行分析;第二章涉及创设交货托运人的理论基础,认为通过立法形式将交货托运人纳入到运输合同当中属于合同相对性原则的突破,符合合同相对性原则的发展趋势;第三章具体探讨交货托运人的各项权利;第四章着重分析交货托运人的义务与责任;结论部分。
[Abstract]:The shipper, as the original party to the contract for the carriage of goods by sea, The International Convention for the Unification of certain rules of Law on Bills of Lading (hereinafter referred to as "the Hague rules") occupies a prominent position in the international maritime conventions as well as in the maritime legislation of various countries. Brussels Protocol of 1968-Protocol to the International Convention amending certain legal provisions of the uniform Bill of Lading signed at Brussels on 25 August 1924 (hereinafter referred to as the "Visby rules") and the Joint Protocol of 1978 The Convention on the Carriage of goods by Sea of the United Nations (hereinafter referred to as the Hamburg rules) adopts different legislative models, China's Maritime Law draws more lessons from the latter's relevant regulations. However, many problems in maritime judicial practice make us reconsider what kind of legislative design can better coordinate the relationship between the parties to the contract of carriage and reasonably divide the rights between the parties. Obligations and responsibilities The latest United Nations Commission on International Trade Law-draft Convention on the Carriage of goods [wholly or partly] [by Sea] (hereinafter referred to as "draft UNCITRAL Transport Law") is also seeking a new legislative model, Attempts to integrate the different provisions of international conventions and national legislation. In this historical background, on the basis of the comparative analysis of the differences and relations between the legal systems of foreign and Chinese shippers, this paper holds that the concept of "shipper of delivery" can be created so that shippers and shippers can be made to deliver goods. Bill of lading holders and consignees to achieve a harmonious coexistence of legislation. There are five chapters in this paper: the first chapter analyzes the legal status of the consignor, mainly aiming at the international conventions and the different provisions of the national legislation on the shipper system, combined with the provisions of China's Maritime Law. It is considered that it is reasonable to create the concept of consignor separately and analyze its constituent elements, identification and so on. The second chapter deals with the theoretical basis for the creation of the shipper of delivery, and holds that the incorporation of the shipper of delivery into the contract of carriage by way of legislation is a breakthrough of the principle of relativity of contract, which conforms to the development trend of the principle of relativity of contract; Chapter three specifically discusses the rights of shippers; chapter four focuses on the obligations and responsibilities of shippers.
【学位授予单位】：大连海事大学
【学位级别】：硕士
【学位授予年份】：2008
【分类号】：D996.19
本文编号：2305556
[Abstract]:The shipper, as the original party to the contract for the carriage of goods by sea, The International Convention for the Unification of certain rules of Law on Bills of Lading (hereinafter referred to as "the Hague rules") occupies a prominent position in the international maritime conventions as well as in the maritime legislation of various countries. Brussels Protocol of 1968-Protocol to the International Convention amending certain legal provisions of the uniform Bill of Lading signed at Brussels on 25 August 1924 (hereinafter referred to as the "Visby rules") and the Joint Protocol of 1978 The Convention on the Carriage of goods by Sea of the United Nations (hereinafter referred to as the Hamburg rules) adopts different legislative models, China's Maritime Law draws more lessons from the latter's relevant regulations. However, many problems in maritime judicial practice make us reconsider what kind of legislative design can better coordinate the relationship between the parties to the contract of carriage and reasonably divide the rights between the parties. Obligations and responsibilities The latest United Nations Commission on International Trade Law-draft Convention on the Carriage of goods [wholly or partly] [by Sea] (hereinafter referred to as "draft UNCITRAL Transport Law") is also seeking a new legislative model, Attempts to integrate the different provisions of international conventions and national legislation. In this historical background, on the basis of the comparative analysis of the differences and relations between the legal systems of foreign and Chinese shippers, this paper holds that the concept of "shipper of delivery" can be created so that shippers and shippers can be made to deliver goods. Bill of lading holders and consignees to achieve a harmonious coexistence of legislation. There are five chapters in this paper: the first chapter analyzes the legal status of the consignor, mainly aiming at the international conventions and the different provisions of the national legislation on the shipper system, combined with the provisions of China's Maritime Law. It is considered that it is reasonable to create the concept of consignor separately and analyze its constituent elements, identification and so on. The second chapter deals with the theoretical basis for the creation of the shipper of delivery, and holds that the incorporation of the shipper of delivery into the contract of carriage by way of legislation is a breakthrough of the principle of relativity of contract, which conforms to the development trend of the principle of relativity of contract; Chapter three specifically discusses the rights of shippers; chapter four focuses on the obligations and responsibilities of shippers.
【学位授予单位】：大连海事大学
【学位级别】：硕士
【学位授予年份】：2008
【分类号】：D996.19
【引证文献】
相关博士学位论文 前1条
1 余妙宏;海上货物运输合同中托运人法律制度研究[D];大连海事大学;2010年
相关硕士学位论文 前2条
1 董蔚;我国海商法中托运人法律制度完善探究[D];中国政法大学;2010年
2 周思伊;我国《海商法》托运人法律制度之完善[D];大连海事大学;2012年
，本文编号：2305556
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