海上运输中的雇主责任研究
发布时间：2018-12-13 02:23
【摘要】：雇主责任制度是民法中以雇佣关系为基础的一项基本制度。雇佣关系在海上运输领域普遍存在,海商法又是民法的特别法,因而海上运输领域的雇主制度也应当作为海商法的一项基本制度加以研究。笔者试以民法中的雇主责任理论为基础,结合海商法的特殊性,对海上运输中的雇主责任理论作较为系统的分析,以期完善我国海商法的理论基础,更好的协调和理顺民法、海商法与相关国际公约的关系,进而完善海上运输领域的法律制度。 本文从基础理论,基础关系,主要问题以及发展趋势等四个方面对海上运输中的雇主责任进行了论述: 在基础理论部分,对海上运输中雇主责任的概念、范围、性质进行了界定,确认了无过错责任是海上运输中雇主责任的归责原则;通过分析比较“Himalaya条款”与雇主责任制度的关系,得出了“Himalaya条款”是海商法与民法两者价值理念的统一,是雇主责任制度在海上运输领域特殊性的体现;在基础关系部分,对船员侵权行为、船员雇佣关系及船员职务行为等三项船方承担雇主责任的基础条件进行了全面系统的分析:在主要问题部分,就海上运输中雇主责任制度较之民法雇主责任制度所存在的几个特殊问题进行了讨论,得出了海上运输中雇主责任的几个特点;在发展趋势部分,分析了《运输法草案》中“履约方”的责任对雇主责任的影响,鉴于受雇人有别于其他“履约方”的特殊经济:地位,实在不宜将其纳入统一的“履约方”责任体系中,而是应当适用雇主责任制度。最后,结合全文的整体讨论,对我国海上运输中的雇主责任制度体系提出了立法建议。
[Abstract]:Employer liability system is a basic system based on employment relationship in civil law. Employment relationship exists generally in the field of maritime transport, and maritime law is the special law of civil law. Therefore, the employer system in maritime transport should also be studied as a basic system of maritime law. Based on the theory of employer's liability in civil law and the particularity of maritime law, the author makes a systematic analysis of the theory of employer's liability in maritime transportation in order to perfect the theoretical basis of maritime law of our country, better coordinate and straighten out the civil law. The relationship between maritime law and relevant international conventions, and then perfect the legal system in the field of maritime transport. This paper discusses the liability of employers in maritime transport from four aspects: basic theory, basic relations, main problems and development trends. This paper defines the concept, scope and nature of employer's liability in maritime transportation, and confirms that no-fault liability is the imputation principle of employer's liability in maritime transportation. By analyzing and comparing the relationship between "Himalaya clause" and employer's liability system, it is concluded that "Himalaya clause" is the unification of the value concept of maritime law and civil law, and the embodiment of the particularity of employer's liability system in the field of maritime transportation. In the basic relation part, the author makes a comprehensive and systematic analysis of the three basic conditions of the ship's responsibility for the employer: in the main problems, the author makes a comprehensive and systematic analysis of the basic conditions of the crew's tort, the crew's employment relationship and the crew's duties. This paper discusses several special problems existing in the system of employer's liability in maritime transport compared with the system of employer's liability in civil law, and obtains several characteristics of employer's liability in maritime transport. In the trend section, the impact of the liability of the "performing party" in the draft Transport Law on the liability of the employer is analysed, in view of the special economy of the employee as distinct from that of the other "performing parties": status, It is not suitable to bring it into the unified "performing party" liability system, but the employer liability system should be applied. Finally, combined with the whole discussion of the whole text, the author puts forward some legislative suggestions on the system of employer's liability in China's maritime 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】：2006
【分类号】：D913;D996.19
本文编号：2375701
[Abstract]:Employer liability system is a basic system based on employment relationship in civil law. Employment relationship exists generally in the field of maritime transport, and maritime law is the special law of civil law. Therefore, the employer system in maritime transport should also be studied as a basic system of maritime law. Based on the theory of employer's liability in civil law and the particularity of maritime law, the author makes a systematic analysis of the theory of employer's liability in maritime transportation in order to perfect the theoretical basis of maritime law of our country, better coordinate and straighten out the civil law. The relationship between maritime law and relevant international conventions, and then perfect the legal system in the field of maritime transport. This paper discusses the liability of employers in maritime transport from four aspects: basic theory, basic relations, main problems and development trends. This paper defines the concept, scope and nature of employer's liability in maritime transportation, and confirms that no-fault liability is the imputation principle of employer's liability in maritime transportation. By analyzing and comparing the relationship between "Himalaya clause" and employer's liability system, it is concluded that "Himalaya clause" is the unification of the value concept of maritime law and civil law, and the embodiment of the particularity of employer's liability system in the field of maritime transportation. In the basic relation part, the author makes a comprehensive and systematic analysis of the three basic conditions of the ship's responsibility for the employer: in the main problems, the author makes a comprehensive and systematic analysis of the basic conditions of the crew's tort, the crew's employment relationship and the crew's duties. This paper discusses several special problems existing in the system of employer's liability in maritime transport compared with the system of employer's liability in civil law, and obtains several characteristics of employer's liability in maritime transport. In the trend section, the impact of the liability of the "performing party" in the draft Transport Law on the liability of the employer is analysed, in view of the special economy of the employee as distinct from that of the other "performing parties": status, It is not suitable to bring it into the unified "performing party" liability system, but the employer liability system should be applied. Finally, combined with the whole discussion of the whole text, the author puts forward some legislative suggestions on the system of employer's liability in China's maritime 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】：2006
【分类号】：D913;D996.19
【引证文献】
相关硕士学位论文 前3条
1 王小明;船员人身伤亡工伤保险赔偿问题研究[D];大连海事大学;2010年
2 吴源敢;中国船员服务机构法律地位研究[D];大连海事大学;2011年
3 张禾;海上人身伤亡中的雇主责任研究[D];大连海事大学;2011年
，本文编号：2375701
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