论海上货物运输中的履约方的法律地位及责任制度

发布时间：2019-01-13 06:32

【摘要】： 随着海上货物运输的不断发展以及航运界分工的细化,承运人之外实际参与到整个海上货物运输过程中履行或承诺履行承运人运输合同项下义务的其他当事方逐渐成为与承运人相并立的海上货物运输领域中非常重要的一类主体。这类主体的存在一方面促进了海上货物运输业的发展,另一方面也使海上货物运输过程中的法律关系变得错综复杂。本文用海上货物运输中的履约方这一法律概念将这一类主体涵盖其中,并在此基础上研究其法律地位和责任制度,力求为这一类主体构建比较合理的责任制度体系,以帮助应对目前海上货物运输领域法律关系复杂化的现状。本文共分为5章。第1章概括介绍了海上货物运输中的履约方这一概念产生的实践基础和法律基础,并结合UNCITRAL运输法草案中履约方和海运履约方的概念,对本文所指的海上货物运输中的履约方进行了界定,比较全面地涵盖了承运人之外实际参与海上货物运输过程的其他当事方,明确了本文的研究对象。第2章运用比较研究的方法,详细介绍并且深入分析了目前国际公约和国内法涉及本文所指海上货物运输中的履约方所包涵的相关方的有关规定,通过对这些规定的利弊分析,以期对本文海上货物运输中的履约方的法律地位及责任制度的研究起到一定的借鉴作用。第3章分析了海上货物运输中的履约方与承运人以及与货方的关系,指出海上货物运输中的履约方在海上货物运输复杂的法律关系中具有双重的法律地位,一方面它与承运人之间存在一般的商业合同关系,是承运人的独立合同人或分合同人,另一方面它与货方之间存在侵权的法律关系,处于侵权行为人的法律地位。同时,由于海上货物运输中的履约方履行或承诺履行的是承运人运输合同项下的义务,而运输合同受强制法律的调整,为了维护海上货物运输法律关系的稳定,需要将承运人在运输合同项下的某些法定的权利义务赋予海上货物运输中的履约方,从而在其与货方的关系上实现了合同相对性原则的突破。第4章通过对海上货物运输中的履约方的核心法律制度,包括责任期间、归责原则、赔偿责任限制及其丧失以及赔偿责任范围等的分析,为海上货物运输中的履约方构建了较为合理的、独立的责任制度体系。海上货物运输中的履约方法律地位的复杂性决定了必须为其设立一种独立的法律制度,规范并统一其在参与海上货物运输过程中的权利义务关系。第5章结合我国目前《海商法》实际承运人制度在理论和司法实践中存在的问题以及港站经营人的法律地位和责任制度不明确的现状,提出了立法建议,建议我国《海商法》引入海上货物运输中的履约方的概念,并增加条文具体规定其责任制度。
[Abstract]:With the continuous development of maritime cargo transportation and the refinement of the division of labor in the shipping industry, The other parties who actually participate in the whole carriage of goods by sea or undertake to perform the obligations under the carrier's contract of carriage gradually become a very important subject in the field of carriage of goods by sea which is parallel with the carrier. On the one hand, the existence of this kind of subject promotes the development of maritime cargo transportation, on the other hand, it also makes the legal relations in the process of maritime cargo transportation become complicated. This paper uses the legal concept of performing party in the carriage of goods by sea to cover this kind of subject, and on this basis studies its legal status and liability system, and tries to construct a more reasonable liability system for this kind of subject. To help deal with the current situation of complex legal relations in the field of carriage of goods by sea. This paper is divided into five chapters. Chapter 1 introduces the practical and legal basis of the concept of the performing party in the carriage of goods by sea, and combines the concepts of the performing party and the maritime performing party in the draft UNCITRAL transport law. In this paper, the performing party in the carriage of goods by sea is defined, which covers the other parties who are actually involved in the carriage of goods by sea, and the research object of this paper is clarified. Chapter 2 uses the method of comparative study to introduce and analyze in detail the relevant provisions of the current international conventions and domestic laws concerning the relevant parties covered by the performing parties in the carriage of goods by sea referred to in this paper, through the analysis of the advantages and disadvantages of these provisions. The purpose of this paper is to study the legal status and liability system of the performing party in the carriage of goods by sea. Chapter 3 analyzes the relationship between the performing party and the carrier and the cargo party in the carriage of goods by sea, and points out that the performing party in the carriage of goods by sea has a dual legal status in the complex legal relationship of the carriage of goods by sea. On the one hand, it has a general commercial contract relationship with the carrier, which is an independent contractor or sub-contractor of the carrier, on the other hand, it has a legal relationship of infringement with the cargo party, and is in the legal position of the tortfeasor. At the same time, because the performing party in the carriage of goods by sea performs or undertakes to perform the obligations under the carrier's contract of carriage, and the contract of carriage is regulated by the compulsory law, in order to maintain the stability of the legal relationship in the carriage of goods by sea, Some legal rights and obligations of the carrier under the contract of carriage need to be conferred on the performing party in the carriage of goods by sea, thus realizing the breakthrough of the principle of relativity of contract in the relationship between the carrier and the cargo party. Chapter 4 adopts an analysis of the core legal regime of the performing party in the carriage of goods by sea, including the period of responsibility, the principle of liability, the limitation of liability and its loss, and the scope of liability. A reasonable and independent liability system is constructed for the performing party in the carriage of goods by sea. The complexity of the legal status of the performing party in the carriage of goods by sea makes it necessary to establish an independent legal system to regulate and unify its rights and obligations in the course of its participation in the carriage of goods by sea. Chapter 5 puts forward some legislative suggestions on the basis of the problems existing in the theory and judicial practice of the actual carrier system in China's Maritime Law and the unclear legal status and liability system of the operators of port stations. It is suggested that China's Maritime Law introduce the concept of a performing party in the carriage of goods by sea and add provisions to specify its liability system.
【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】：D922.29

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