无单放货法律责任的归责与程序分析
发布时间：2019-06-15 20:33
【摘要】：近年来,海事审判实践中的无单放货纠纷案在海事法院收审案件中所占的比例居高不下,无单放货行为的法律责任问题也成为案件当事人所争议的焦点和海商法学界的研究热点。 承运人无单放货一直以来都被看成是严格责任,即不论是否为故意或过失,只要承运人有无单放货行为,除非有免责事由,否则一定要承担法律责任。传统上,承运人无单放货法律责任为单一特殊侵权责任。十九世纪中叶后,无单放货法律责任形式二元化,出现了违约与侵权两种责任形式,此后不久,又有了侵权与违约竞合责任。法律责任形式的多元化必然使得对其认定更为复杂。而对无单放货法律责任的认定又直接关系到案件的最终审判结果;关系到合同买卖双方、承运人、银行、提单持有人等多方利益。本文之所以对无单放货法律责任问题进行研究,就是希望能以此为无单放货案件的审判提供理论上的帮助,从而使得案件结果能公平、公正、有效的平衡各方利益。 本文首先从无单放货中的提单性质入手,提出了提单弱物权性与强债权性特点及其理由,并质疑了提单“丧失物权功能说”与绝对债权性的观点,试图给当前无单放货案件多判为违约责任的事实提供理论支持,并分析了无单放货法律责任的形式与界定及其与提单的关系问题;然后,又分析了无单放货法律责任的归责及其相关问题;接着,列举了特殊无单放货的法律责任问题,提出了相应的评断;最后,就无单放货法律责任程序规则问题诸如诉讼时效、管辖权、证明责任和证据效力等进行了探讨。
[Abstract]:In recent years, the proportion of unsolicited shipping disputes in maritime court cases is high, and the legal liability of shipping without single delivery has become the focus of dispute between the parties to the case and the research focus in the field of maritime law. Carrier delivery without bill has always been regarded as strict liability, that is, whether intentional or not, as long as the carrier has a single delivery act, unless there is a reason for exemption, it must bear legal liability. Traditionally, the carrier's legal liability for delivery is a single special tort liability. After the middle of the 19th century, the form of legal liability for delivery without single delivery was dualized, and there were two forms of liability for breach of contract and tort, and soon after, there was a concurrence liability for tort and breach of contract. The diversification of the form of legal liability will inevitably make its identification more complex. The cognizance of legal liability for delivery without bill of lading is directly related to the final trial result of the case, and to the interests of both parties to the contract, carrier, bank, bill of lading holder and so on. The reason why this paper studies the legal liability of delivery without bill is to provide theoretical help for the trial of the case without single delivery, so that the result of the case can balance the interests of all parties fairly, fairly and effectively. Starting with the nature of bill of lading in delivery without bill of lading, this paper puts forward the characteristics and reasons of weak property right and strong creditor's right of bill of lading, and questions the viewpoint of "theory of loss of real right function" and absolute creditor's right of bill of lading, tries to provide theoretical support for the fact that the current case of delivery without bill of lading is overjudged as breach of contract liability, and analyzes the form and definition of legal liability for delivery without bill of lading and its relationship with bill of lading. Then, it analyzes the imputation of legal liability without single delivery and its related problems; then, enumerates the special legal liability for delivery without single delivery, and puts forward the corresponding evaluation; finally, it discusses the procedural rules of legal liability for delivery without single delivery, such as limitation of action, jurisdiction, burden of proof and effectiveness of evidence, etc.
【学位授予单位】：湖南师范大学
【学位级别】：硕士
【学位授予年份】：2006
【分类号】：D996.19;D922.294
本文编号：2500495
[Abstract]:In recent years, the proportion of unsolicited shipping disputes in maritime court cases is high, and the legal liability of shipping without single delivery has become the focus of dispute between the parties to the case and the research focus in the field of maritime law. Carrier delivery without bill has always been regarded as strict liability, that is, whether intentional or not, as long as the carrier has a single delivery act, unless there is a reason for exemption, it must bear legal liability. Traditionally, the carrier's legal liability for delivery is a single special tort liability. After the middle of the 19th century, the form of legal liability for delivery without single delivery was dualized, and there were two forms of liability for breach of contract and tort, and soon after, there was a concurrence liability for tort and breach of contract. The diversification of the form of legal liability will inevitably make its identification more complex. The cognizance of legal liability for delivery without bill of lading is directly related to the final trial result of the case, and to the interests of both parties to the contract, carrier, bank, bill of lading holder and so on. The reason why this paper studies the legal liability of delivery without bill is to provide theoretical help for the trial of the case without single delivery, so that the result of the case can balance the interests of all parties fairly, fairly and effectively. Starting with the nature of bill of lading in delivery without bill of lading, this paper puts forward the characteristics and reasons of weak property right and strong creditor's right of bill of lading, and questions the viewpoint of "theory of loss of real right function" and absolute creditor's right of bill of lading, tries to provide theoretical support for the fact that the current case of delivery without bill of lading is overjudged as breach of contract liability, and analyzes the form and definition of legal liability for delivery without bill of lading and its relationship with bill of lading. Then, it analyzes the imputation of legal liability without single delivery and its related problems; then, enumerates the special legal liability for delivery without single delivery, and puts forward the corresponding evaluation; finally, it discusses the procedural rules of legal liability for delivery without single delivery, such as limitation of action, jurisdiction, burden of proof and effectiveness of evidence, etc.
【学位授予单位】：湖南师范大学
【学位级别】：硕士
【学位授予年份】：2006
【分类号】：D996.19;D922.294
【引证文献】
相关期刊论文 前1条
1 张晓骏;;浅析海上货物运输中的无单放货[J];中国商贸;2011年03期
相关硕士学位论文 前3条
1 王超;承运人无单放货法律责任研究[D];天津财经大学;2011年
2 刘荔丹;记名提单的物权凭证属性及放货问题之法律研究[D];华东政法大学;2008年
3 肖建依;无单放货国际私法问题研究[D];复旦大学;2009年
，本文编号：2500495
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