国际海上货物运输中的货物控制权研究
发布时间：2019-01-14 17:17
【摘要】： 国际海上货物运输中,买卖合同的卖方为履行交货义务,将货物交给承运人之后,当出现不可抗力、买方违约或买方丧失支付能力等情形导致买卖合同不能实际履行时,需要变更运输合同,这种变更运输合同的需要催生了货物控制权制度。货物控制权是在运输合同履行过程中,实现卖方在买卖合同中救济权利的需要,也就意味着将贸易法中的条款引入到了运输法中,它比货物贸易法领域的“中途停运权”能更好平衡各方当事人利益,是一种更为有效的救济权利。海运外其他运输方式的国际公约,对货物控制权已有所规定。在海上运输领域,由于提单的最大范围使用,货物控制权一度未受重视。随着航运与科技的进步,实践中开始大量使用不可转让单证及电子单证。为了使货物运输更好的衔接货物买卖,同时也为了适应海运单和电子商务的迅猛发展,关于海运货物控制权的研究和立法逐渐受到国际航运界的关注,1990年国际海事委员会《海运单统一规则》和1990年国际海事委员会《电子提单规则》都规定有货物控制权,但只是针对海运单和电子提单的,并不适用于提单运输。CMI/UNCITRAL《[全程或部分][海上]货物运输公约草案》(以下简称《草案》)这一致力于建立运输领域统一规则的国际公约首开先河,对“货物控制权”这一制度进行了全面的规定。 我国《海商法》没有关于货物控制权的规定,《合同法》第308条的规定被认为是我国关于货物控制权的规定,但该规定不适合海上货物运输的特殊需要。本文以正在进行审议的《草案》为蓝本,试图通过剖析该草案对控制权制度的规定,阐明控制权制度对将来的海上货物运输的积极意义,并由此引出中国在修改《海商法》过程中对该制度的借鉴。 文章分为导言、正文和结语三个部分,其中正文部分分为四章: 第一章主要从衔接贸易法与运输法的需要、海上货物运输法中单证制度的发展角度入手,详细分析了建立控制权制度的原因,并介绍了与控制权相关的立法。 第二章以《草案》第10章为蓝本,详细论述了谁可以作为控制方行使控制权,并对控制权内容进行了分析,阐述了自己的理解。 第三章论述了控制权的性质和行使。在第二章基础上,对控制权的性质提出了自己的观点,即认为控制权是具有物权性质的法定权利,并对控制权的行使期间、行使条件等控制权的行使问题作了分析、归纳。 第四章分析了中国立法现状及《合同法》第308条适用于海上货物运输的可能性,认为我国《海商法》应借鉴《草案》中对控制权的规定内容,并提出了相关修改建议。
[Abstract]:In the international carriage of goods by sea, the seller of the contract of sale and purchase, in order to perform the obligation of delivery, after handing the goods over to the carrier, when the circumstances of force majeure, breach of contract of the buyer or the buyer's loss of ability to pay cause the contract of sale and purchase cannot actually be performed, Need to change the contract of carriage, this need to change the contract of carriage gave birth to the system of control of goods. The right of control of goods is the need to realize the seller's right of relief in the contract of sale in the course of the performance of the contract of carriage, which means that the provisions of the trade law are introduced into the law of carriage. It is a more effective relief right than the right of stoppage in the field of trade law. International conventions on other modes of transport other than sea transport already regulate the right of control of the goods. In the field of maritime transport, the right of control of goods has been neglected because of the maximum use of bills of lading. With the progress of shipping and technology, non-negotiable documents and electronic documents have been widely used in practice. In order to make the transport of goods better link up the sale of goods, but also in order to adapt to the rapid development of ocean bill and electronic commerce, the research and legislation on the control right of maritime cargo has gradually attracted the attention of the international shipping industry. Both the 1990 CMI uniform rules on Maritime Bills and the 1990 CMI Electronic Bills of Lading rules provide for the right of control of the goods, but only in respect of sea waybills and electronic bills of lading, Not applicable to the carriage of bills of lading. CMI/UNCITRAL draft Convention on the Carriage of goods [wholly or partly] [by Sea] "(hereinafter referred to as" draft "), the first international convention devoted to the establishment of uniform rules in the field of carriage, The system of "right of control of goods" is comprehensively regulated. China's Maritime Law has no provisions on the right of control of goods. Article 308 of the contract Law is considered to be a regulation of the right of control of goods in our country, but this provision is not suitable for the special needs of the carriage of goods by sea. Based on the draft that is under consideration, this paper attempts to clarify the positive significance of the system of control to the future carriage of goods by sea by analyzing the provisions of the draft on the system of control. And thus leads to China in the process of amending the Maritime Law to learn from the system. The article is divided into three parts: introduction, text and conclusion, in which the text is divided into four chapters: the first chapter mainly from the need to link up the trade law and transport law, the development of the document system in the carriage of goods by sea. This paper analyzes in detail the reasons for the establishment of the right of control system, and introduces the legislation related to the right of control. The second chapter, based on Chapter 10 of the draft, discusses in detail who can exercise the control right as the controlling party, and analyzes the content of the control right and expounds its own understanding. The third chapter discusses the nature and exercise of the right of control. On the basis of the second chapter, the author puts forward his own viewpoint on the nature of the right of control, that is, the right of control is a legal right with the nature of real right, and analyzes the exercise of the right of control during the exercise of the right of control, such as the conditions for the exercise of the right of control. The fourth chapter analyzes the current situation of China's legislation and the possibility that Article 308 of the contract Law is applicable to the carriage of goods by sea, and points out that China's Maritime Law should draw lessons from the provisions of the draft on the right of control, and puts forward some suggestions for amendment.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2008
【分类号】：D996.1
本文编号：2408918
[Abstract]:In the international carriage of goods by sea, the seller of the contract of sale and purchase, in order to perform the obligation of delivery, after handing the goods over to the carrier, when the circumstances of force majeure, breach of contract of the buyer or the buyer's loss of ability to pay cause the contract of sale and purchase cannot actually be performed, Need to change the contract of carriage, this need to change the contract of carriage gave birth to the system of control of goods. The right of control of goods is the need to realize the seller's right of relief in the contract of sale in the course of the performance of the contract of carriage, which means that the provisions of the trade law are introduced into the law of carriage. It is a more effective relief right than the right of stoppage in the field of trade law. International conventions on other modes of transport other than sea transport already regulate the right of control of the goods. In the field of maritime transport, the right of control of goods has been neglected because of the maximum use of bills of lading. With the progress of shipping and technology, non-negotiable documents and electronic documents have been widely used in practice. In order to make the transport of goods better link up the sale of goods, but also in order to adapt to the rapid development of ocean bill and electronic commerce, the research and legislation on the control right of maritime cargo has gradually attracted the attention of the international shipping industry. Both the 1990 CMI uniform rules on Maritime Bills and the 1990 CMI Electronic Bills of Lading rules provide for the right of control of the goods, but only in respect of sea waybills and electronic bills of lading, Not applicable to the carriage of bills of lading. CMI/UNCITRAL draft Convention on the Carriage of goods [wholly or partly] [by Sea] "(hereinafter referred to as" draft "), the first international convention devoted to the establishment of uniform rules in the field of carriage, The system of "right of control of goods" is comprehensively regulated. China's Maritime Law has no provisions on the right of control of goods. Article 308 of the contract Law is considered to be a regulation of the right of control of goods in our country, but this provision is not suitable for the special needs of the carriage of goods by sea. Based on the draft that is under consideration, this paper attempts to clarify the positive significance of the system of control to the future carriage of goods by sea by analyzing the provisions of the draft on the system of control. And thus leads to China in the process of amending the Maritime Law to learn from the system. The article is divided into three parts: introduction, text and conclusion, in which the text is divided into four chapters: the first chapter mainly from the need to link up the trade law and transport law, the development of the document system in the carriage of goods by sea. This paper analyzes in detail the reasons for the establishment of the right of control system, and introduces the legislation related to the right of control. The second chapter, based on Chapter 10 of the draft, discusses in detail who can exercise the control right as the controlling party, and analyzes the content of the control right and expounds its own understanding. The third chapter discusses the nature and exercise of the right of control. On the basis of the second chapter, the author puts forward his own viewpoint on the nature of the right of control, that is, the right of control is a legal right with the nature of real right, and analyzes the exercise of the right of control during the exercise of the right of control, such as the conditions for the exercise of the right of control. The fourth chapter analyzes the current situation of China's legislation and the possibility that Article 308 of the contract Law is applicable to the carriage of goods by sea, and points out that China's Maritime Law should draw lessons from the provisions of the draft on the right of control, and puts forward some suggestions for amendment.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2008
【分类号】：D996.1
【引证文献】
相关硕士学位论文 前5条
1 吴琼;论海上货物运输中的货物控制权[D];中国政法大学;2011年
2 董水清;结合海上货物运输合同谈海上货物控制权[D];华东政法大学;2009年
3 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
4 何俊;论FOB条件下货物控制权研究[D];大连海事大学;2012年
5 毕仲辉;构建海运货物控制权制度研究[D];华东政法大学;2012年
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