国内水路货运实际承运人制度构造研究
发布时间：2018-12-08 21:33
【摘要】：根据运输货物时起运港和目的港的地理位置不同,可以将水路货物运输分为国际海上货物运输和国内水路货物运输。就我国而言,国际海上货物运输是指在不同国家港口之间从事的货物运输,而国内水路货物运输是指在我国沿海各港口之间、沿海港口与内河港口之间以及内河港口之间从事的货物运输。由于《海商法》第四章明确规定该章仅适用于国际海上货物运输,因此,在国内水路货物运输领域主要以《中华人民共和国民法通则》(以下简称《民法通则》)、《中华人民共和国合同法》(以下简称《合同法》)及其相关司法解释作为调整国内水路货物运输法律关系的依据。其中,关于实际承运人制度仅有已废止的《国内水路货物运输规则》(以下简称《货规》)中有所规定。但是《货规》已于2016年5月30日废止,这就造成了实际承运人制度的法律空缺。在此情形下,笔者分析了实际承运人制度缺失通过现行法律解决的不可行性,论述了实际承运人制度亟需立法构造,最后提出应以原《货规》和《海商法》为蓝本,可在未来《民法典》合同编中,从实际承运人含义、权利义务和责任三个方面入手重新构造实际承运人制度,以期解决国内水路货物运输实际承运人制度缺失的问题,对国内航运运输发展有所裨益。
[Abstract]:According to the different geographical position between the port of departure and the port of destination, waterway cargo transport can be divided into international sea cargo transport and domestic waterway cargo transport. In the case of China, the international carriage of goods by sea refers to the carriage of goods between ports of different countries, while the domestic carriage of goods by sea refers to the transport of goods between the ports along the coast of our country. Transport of goods between coastal ports and inland ports and between inland ports. As Chapter IV of the Maritime Law clearly stipulates that this chapter applies only to the international carriage of goods by sea, in the field of domestic carriage of goods by sea, the general principles of civil law of the people's Republic of China (hereinafter referred to as "the General principles of the Civil Law") are mainly used in the field of domestic carriage of goods by water. "contract Law of the people's Republic of China" (hereinafter referred to as "contract Law") and its related judicial interpretation as the basis for adjusting the legal relationship of domestic waterway freight transport. Among them, the actual carrier system only has been abolished in the domestic regulations for the carriage of goods by water (hereinafter referred to as "cargo Code"). But the Code was repealed on May 30, 2016, leaving a legal gap in the actual carrier system. In this case, the author analyzes the impossibility of solving the deficiency of the actual carrier system through the current law, discusses that the actual carrier system needs to be legislated urgently, and finally puts forward that the original cargo Code and the Maritime Law should be taken as the original model. In the future Civil Code, we can reconstruct the actual carrier system from three aspects: the actual carrier's meaning, the right and the obligation and the responsibility, in order to solve the problem of the lack of the actual carrier system in the domestic waterway freight transport. It is beneficial to the development of domestic shipping transportation.
【学位授予单位】：大连海事大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D922.294;D923.6
[Abstract]:According to the different geographical position between the port of departure and the port of destination, waterway cargo transport can be divided into international sea cargo transport and domestic waterway cargo transport. In the case of China, the international carriage of goods by sea refers to the carriage of goods between ports of different countries, while the domestic carriage of goods by sea refers to the transport of goods between the ports along the coast of our country. Transport of goods between coastal ports and inland ports and between inland ports. As Chapter IV of the Maritime Law clearly stipulates that this chapter applies only to the international carriage of goods by sea, in the field of domestic carriage of goods by sea, the general principles of civil law of the people's Republic of China (hereinafter referred to as "the General principles of the Civil Law") are mainly used in the field of domestic carriage of goods by water. "contract Law of the people's Republic of China" (hereinafter referred to as "contract Law") and its related judicial interpretation as the basis for adjusting the legal relationship of domestic waterway freight transport. Among them, the actual carrier system only has been abolished in the domestic regulations for the carriage of goods by water (hereinafter referred to as "cargo Code"). But the Code was repealed on May 30, 2016, leaving a legal gap in the actual carrier system. In this case, the author analyzes the impossibility of solving the deficiency of the actual carrier system through the current law, discusses that the actual carrier system needs to be legislated urgently, and finally puts forward that the original cargo Code and the Maritime Law should be taken as the original model. In the future Civil Code, we can reconstruct the actual carrier system from three aspects: the actual carrier's meaning, the right and the obligation and the responsibility, in order to solve the problem of the lack of the actual carrier system in the domestic waterway freight transport. It is beneficial to the development of domestic shipping transportation.
【学位授予单位】：大连海事大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D922.294;D923.6
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