《鹿特丹规则》下批量合同的法律问题研究
发布时间：2019-07-06 16:24
【摘要】：2008年联合国第63届大会第67次全体会议通过了《联合国全程或部分海上国际货物运输合同公约》，简称《鹿特丹规则》。与以往的国际海上货物运输公约相比，《鹿特丹规则》的重要创新之一在于首次明确的将批量合同纳入了调整范围。批量合同是在国际海上货物运输业务的不断发展的背景下形成的一种新型海上货物运输合同，其最大特色在于核心条款是由承运人和托运人自由协商订立的。相比以往传统海上货物运输合同，批量合同有着明显优势，不仅可以保证承运人获得稳定的货源和收益，还可以让托运人享受充足的运力和优惠的运价。因此在海上货物运输实践中极为盛行。但在传统国际海上货物运输公约和除美国外的大多数国家的海商法中都没有关于此类合同的相关规定，《鹿特丹规则》的问世及时地填补了立法的空白，从国际海上货物运输公约的角度初次明确了批量合同相关法律制度。 本文首先对批量合同的溯源、界定与性质等法理进行阐述，并将批量合同与其他类似海运合同加以对比，以期对批量合同做出更为准确的理解。并对《鹿特丹规则》框架下的批量合同特别规则加以研究，重点分析了批量合同下承托双方的权利义务以及当事人的合同自由。公约中的批量合同特别规则突破了《海牙规则》以来确立的传统国际海上货物运输公约严格限制合同自由的原则，创造性地赋予批量合同当事人较为充分的合同自由。基于批量合同在我国相关立法中的空白状态，以及批量合同制度对我国航运业以及货主可能产生的影响，建议在我国《海商法》修改之际，借鉴《鹿特丹规则》的做法，在《海商法》第四章“海上货物运输合同”中单独设立一节，专门对批量合同做出规定，同时赋予批量合同当事人较为充分的合同自由，除涉及海上航行安全和公共利益的事项外，，其余都允许当事人双方经过自由协商进行背离，仅在合同没有约定或无相反约定时才适用相关法律规定。
[Abstract]:At the 67th plenary meeting of the 63rd session of the United Nations General Assembly in 2008, the United Nations Convention on contracts for the International Carriage of goods wholly or partly by Sea, referred to as the Rotterdam rules, was adopted. Compared with the previous conventions on the international carriage of goods by sea, one of the important innovations of the Rotterdam rules lies in the explicit inclusion of volume contracts in the scope of adjustment for the first time. Volume contract is a new type of contract for the carriage of goods by sea, which is formed under the background of the continuous development of international maritime cargo transport business. Its biggest characteristic is that the core clause is freely negotiated between the carrier and the shipper. Compared with the traditional contract of carriage of goods by sea, the volume contract has obvious advantages, which can not only ensure the carrier to obtain stable supply and income, but also allow the shipper to enjoy sufficient capacity and preferential freight rate. Therefore, it is very popular in the practice of shipping goods by sea. However, there are no relevant provisions on such contracts in the traditional conventions on the international carriage of goods by sea and the maritime law of most countries except the United States. The publication of the Rotterdam rules has filled in the gaps in legislation in a timely manner, and the legal system related to volume contracts has been clarified for the first time from the perspective of the Convention on the International Carriage of goods by Sea. This paper first expounds the traceability, definition and nature of the volume contract, and compares the volume contract with other similar shipping contracts in order to make a more accurate understanding of the volume contract. The special rules of volume contract under the framework of Rotterdam rules are studied, and the rights and obligations of the parties and the freedom of contract of the parties under the volume contract are analyzed in detail. The special rules of volume contract in the Convention break through the principle of strictly restricting the freedom of contract in the traditional Convention on the International Carriage of goods by Sea, which has been established since the Hague rules, and creatively enforces the parties to the volume contract with more full freedom of contract. Based on the blank state of the volume contract in the relevant legislation of our country and the possible influence of the volume contract system on the shipping industry and the cargo owners of our country, it is suggested that when the Maritime Law of our country is amended, a separate section should be set up in Chapter IV of the Maritime Law, "contract for the Carriage of goods by Sea," At the same time, the parties to the volume contract are given more full freedom of contract, except for matters involving the safety of maritime navigation and public interests, the other parties are allowed to deviate through free negotiation, and the relevant legal provisions are applied only if there is no agreement or no contrary agreement in the contract.
【学位授予单位】：苏州大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D996.19
本文编号：2511164
[Abstract]:At the 67th plenary meeting of the 63rd session of the United Nations General Assembly in 2008, the United Nations Convention on contracts for the International Carriage of goods wholly or partly by Sea, referred to as the Rotterdam rules, was adopted. Compared with the previous conventions on the international carriage of goods by sea, one of the important innovations of the Rotterdam rules lies in the explicit inclusion of volume contracts in the scope of adjustment for the first time. Volume contract is a new type of contract for the carriage of goods by sea, which is formed under the background of the continuous development of international maritime cargo transport business. Its biggest characteristic is that the core clause is freely negotiated between the carrier and the shipper. Compared with the traditional contract of carriage of goods by sea, the volume contract has obvious advantages, which can not only ensure the carrier to obtain stable supply and income, but also allow the shipper to enjoy sufficient capacity and preferential freight rate. Therefore, it is very popular in the practice of shipping goods by sea. However, there are no relevant provisions on such contracts in the traditional conventions on the international carriage of goods by sea and the maritime law of most countries except the United States. The publication of the Rotterdam rules has filled in the gaps in legislation in a timely manner, and the legal system related to volume contracts has been clarified for the first time from the perspective of the Convention on the International Carriage of goods by Sea. This paper first expounds the traceability, definition and nature of the volume contract, and compares the volume contract with other similar shipping contracts in order to make a more accurate understanding of the volume contract. The special rules of volume contract under the framework of Rotterdam rules are studied, and the rights and obligations of the parties and the freedom of contract of the parties under the volume contract are analyzed in detail. The special rules of volume contract in the Convention break through the principle of strictly restricting the freedom of contract in the traditional Convention on the International Carriage of goods by Sea, which has been established since the Hague rules, and creatively enforces the parties to the volume contract with more full freedom of contract. Based on the blank state of the volume contract in the relevant legislation of our country and the possible influence of the volume contract system on the shipping industry and the cargo owners of our country, it is suggested that when the Maritime Law of our country is amended, a separate section should be set up in Chapter IV of the Maritime Law, "contract for the Carriage of goods by Sea," At the same time, the parties to the volume contract are given more full freedom of contract, except for matters involving the safety of maritime navigation and public interests, the other parties are allowed to deviate through free negotiation, and the relevant legal provisions are applied only if there is no agreement or no contrary agreement in the contract.
【学位授予单位】：苏州大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D996.19
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