包运合同法律问题研究
发布时间：2018-11-11 21:39
【摘要】： 近年来,包运合同在国际海上货物运输中十分盛行,主要原因是包运合同能够在一定的时期内给托运人保证足够的运力,也能给承运人保证足够的货源。但是,在包运合同的实际操作过程中,由于调整海上货物运输关系的国际公约和国内法规均没有关于包运合同的相关规定,不可避免地出现了一系列纠纷。由于相关法律在包运合同方面规定的欠缺,很容易导致合同双方的利益得不到有效的保证。同时,我国作为一个航运大国和贸易大国,包运合同在运输合同中的比例也逐年上升,在我国,制定包运合同的相关法律规定具有必要性。 本文先从包运合同定义、特征以及法律性质的分析着手,开展对包运合同相关一系列法律问题的分析。因包运合同性质在某种程度上与连续航次租船相似,所以在分析过程中,笔者借鉴了英美国家关于航次租船合同和包运合同的相关规定,同时分析了联合国国际贸易法委员会制定的《UNCITRAL货物运输法草案》内关于包运合同(该草案将包运合同称为“volume contract”,“总量合同”或“批量合同”)的相关规定所引发的相关思考以及澳大利亚、法国关于包运合同下合同自由问题的相关提案,来进一步讨论包运合同的相关法律问题。接着,笔者对我国包运合同法律适用的强制性与非强制性问题进行了分析,探讨包运合同在我国法律制度下应遵循的合同自由的限度。最后,笔者得出结论:鉴于包运合同的法律性质与连续航行租船合同相似,建议立法者们在我国《海商法》第四章海上货物运输中单设一节,与第七节《航次租船的特别规定》并列;同时,法律应对将包运合同双方会影响到第三方利益以及影响公共利益的义务、合同双方的责任基础以及承运人的免责事由做出强制性规定,而对与包运合同有关的其它事项,尊重合同双方的合同自愿原则,允许双方自行协商,法律的相关规定仅仅是在双方合同中没有规定或者没有相反规定时才适用。
[Abstract]:In recent years, the contract of package transportation is very popular in the international carriage of goods by sea. The main reason is that the contract of package shipment can guarantee the shipper enough capacity and the carrier enough source of goods in a certain period of time. However, in the actual operation of the contract, a series of disputes inevitably arise because the international conventions and domestic laws and regulations regulating the relations between the carriage of goods by sea do not have the relevant provisions on the contract of package transportation. Due to the lack of the relevant law in the contract of contract, it is easy to lead to the interests of both parties can not be effectively guaranteed. At the same time, as a big shipping country and a big trading country, the proportion of the package contract in the transport contract is also increasing year by year. In our country, it is necessary to formulate the relevant legal provisions of the contract. This paper begins with the analysis of the definition, characteristics and legal nature of the contract of package shipment, and analyzes a series of legal problems related to the contract of package shipment. Because the nature of the contract is similar to that of the continuous voyage charter to some extent, in the process of analysis, the author draws on the relevant provisions of the voyage charter contract and the charter ship contract in the United States and the United States. At the same time, this paper analyzes the contract of package carriage in the draft Law on the Carriage of goods of UNCITRAL, which is formulated by the United Nations Commission on International Trade Law (this draft refers to the contract of package carriage as "volume contract", The relevant thinking caused by the relevant provisions of the "volume contract" or "volume contract", and the relevant proposal of Australia and France on the freedom of contract under the contract of package shipping, to further discuss the relevant legal issues of the contract of package shipment. Then, the author analyzes the compulsory and non-mandatory application of the contract law in China, and probes into the limitation of the freedom of contract which should be followed under the legal system of our country. Finally, the author comes to the conclusion that since the legal nature of the contract is similar to that of the charter party for continuous navigation, it is suggested that the legislators should set up a separate section in the fourth chapter of the Maritime Law of China in the carriage of goods by sea. Parallel to Section 7 "Special provisions on voyage chartering"; At the same time, the law shall make mandatory provisions for the parties to the contract to affect the interests of third parties and the obligations affecting the public interest, the basis of the responsibility of the parties to the contract and the reasons for the exemption of the carrier, and for other matters relating to the contract of package shipment, Respect the voluntary principle of the contract between the parties to the contract and allow the parties to negotiate on their own, and the relevant provisions of the law shall apply only if they are not stipulated or otherwise stipulated in the contract between the two parties.
【学位授予单位】：上海海事大学
【学位级别】：硕士
【学位授予年份】：2007
【分类号】：D996.19
本文编号：2326214
[Abstract]:In recent years, the contract of package transportation is very popular in the international carriage of goods by sea. The main reason is that the contract of package shipment can guarantee the shipper enough capacity and the carrier enough source of goods in a certain period of time. However, in the actual operation of the contract, a series of disputes inevitably arise because the international conventions and domestic laws and regulations regulating the relations between the carriage of goods by sea do not have the relevant provisions on the contract of package transportation. Due to the lack of the relevant law in the contract of contract, it is easy to lead to the interests of both parties can not be effectively guaranteed. At the same time, as a big shipping country and a big trading country, the proportion of the package contract in the transport contract is also increasing year by year. In our country, it is necessary to formulate the relevant legal provisions of the contract. This paper begins with the analysis of the definition, characteristics and legal nature of the contract of package shipment, and analyzes a series of legal problems related to the contract of package shipment. Because the nature of the contract is similar to that of the continuous voyage charter to some extent, in the process of analysis, the author draws on the relevant provisions of the voyage charter contract and the charter ship contract in the United States and the United States. At the same time, this paper analyzes the contract of package carriage in the draft Law on the Carriage of goods of UNCITRAL, which is formulated by the United Nations Commission on International Trade Law (this draft refers to the contract of package carriage as "volume contract", The relevant thinking caused by the relevant provisions of the "volume contract" or "volume contract", and the relevant proposal of Australia and France on the freedom of contract under the contract of package shipping, to further discuss the relevant legal issues of the contract of package shipment. Then, the author analyzes the compulsory and non-mandatory application of the contract law in China, and probes into the limitation of the freedom of contract which should be followed under the legal system of our country. Finally, the author comes to the conclusion that since the legal nature of the contract is similar to that of the charter party for continuous navigation, it is suggested that the legislators should set up a separate section in the fourth chapter of the Maritime Law of China in the carriage of goods by sea. Parallel to Section 7 "Special provisions on voyage chartering"; At the same time, the law shall make mandatory provisions for the parties to the contract to affect the interests of third parties and the obligations affecting the public interest, the basis of the responsibility of the parties to the contract and the reasons for the exemption of the carrier, and for other matters relating to the contract of package shipment, Respect the voluntary principle of the contract between the parties to the contract and allow the parties to negotiate on their own, and the relevant provisions of the law shall apply only if they are not stipulated or otherwise stipulated in the contract between the two parties.
【学位授予单位】：上海海事大学
【学位级别】：硕士
【学位授予年份】：2007
【分类号】：D996.19
【参考文献】
相关期刊论文 前1条
1 王淑敏,郭x+石;国际货运代理人执行美国航线服务合同的若干法律问题[J];中国海商法年刊;1998年00期
，本文编号：2326214
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