扣船涉及的管辖权问题研究

发布时间：2018-05-31 02:02

本文选题：船舶扣押 + 程序性管辖　；参考：《中国海洋大学》2009年硕士论文

【摘要】： 船舶扣押和涉外海事诉讼管辖是两个为海商法学界广泛研究的问题,每个领域都取得了丰硕的研究成果。但由于两个问题的侧重点不同,对于二者交叉点的扣船涉及的管辖问题却几乎没有专门系统的研究。然而事实上,扣船涉及的管辖问题有自己独特的制度和原则,绝非涉外海事诉讼管辖领域所能涵盖;同时,该问题的复杂程度又远非是一般船舶扣押领域所能阐述清楚的。且在实践中,如果缺乏对各国扣船制度的了解,无法分清管辖问题的不同类型及其对应的管辖规则,当事人的正当权利可能无法保障,也有可能承担被错扣的风险。故而,将扣船涉及的管辖问题作为一个单独问题进行系统研究在理论上和实践中都是很有意义的。文章分为六个部分: 引言部分,介绍扣船涉及的管辖问题的研究现状,引出写作本文的目的第一章,用比较论证的方法,通过比较各法系代表国家及国际公约的基本扣船制度,使人们对船舶扣押的含义有一个正确的认识,进而将扣船涉及的管辖问题分为程序性管辖、实体问题管辖、错误扣船索赔诉讼管辖三类。第二章,通过介绍各国和主要公约的做法,明确扣船程序性管辖是一个独立于实体管辖的问题。在此基础上,分析了禁令、对物诉讼、假扣押等不同扣船方式下,程序性管辖权的归属问题,并且阐述了《民商事管辖权和外国判决公约(草案)》对扣船程序性管辖权的启示。最后结合各国司法实践分析了仲裁及管辖权选择条款对扣船程序性管辖权的影响第三章,以扣船制度中最特别的扣船地法院管辖原则为中心,分析了扣船实体管辖问题中各管辖原则之间的关系,重点研究了扣船地法院管辖与协议管辖之间的关系。针对实体问题管辖出现冲突的原因,提出了缓解冲突的建议。由于船舶扣押地拥有其他连结点所不具有的诸多优势,故而扣船成为当事人择地行诉的首选方式,为防止当事人滥用诉权,文章提出了对通过扣船择地行诉的限制措施。第四章,在明确错误扣船索赔诉讼为独立的侵权之诉的基础上,阐述了该类管辖权归属的理论。另外对《1999年扣船公约》关于错误扣船索赔诉讼管辖的规定加以介绍,指出该规定可能导致错误扣船判决与实体问题判决不一致情况的出现。第五章,分析我国目前关于扣船涉及的管辖问题的规定,找出其中的不足,并从适当承认管辖协议对扣船程序性管辖法院的选择,增加协调不同国家间扣船措施与实体问题管辖衔接的规定,引入不方便法院原则及明确我国错误扣船索赔诉讼的管辖归属等四个方面提出了笔者对于完善我国扣船管辖制度的一点看法。
[Abstract]:The arrest of ships and the jurisdiction of foreign maritime litigation are two widely studied problems in the field of maritime law. However, due to the different emphases of the two problems, there is almost no systematic study on the jurisdiction of the arrest of ships at the intersection of the two problems. In fact, however, the jurisdictional issues involved in the arrest of ships have their own unique system and principles, which are by no means covered by the jurisdiction of foreign maritime litigation. At the same time, the complexity of the issue is far from being clearly explained in the field of arrest of ships in general. And in practice, if the lack of understanding of the arrest system of countries, can not distinguish the different types of jurisdiction issues and their corresponding jurisdiction rules, the legitimate rights of the parties may not be guaranteed, but also may bear the risk of being wrongly detained. Therefore, it is of great significance in theory and practice to study the jurisdiction of arrest as a separate problem. The article is divided into six parts: The introduction introduces the current situation of the research on the jurisdictional issues involved in the arrest of ships, and leads to the purpose of writing this article. In the first chapter, by comparing the basic arrest systems of countries and international conventions in different legal systems, the author makes people have a correct understanding of the meaning of arrest of ships, and then divides the jurisdictional issues involved in arrest into procedural jurisdiction. There are three types of jurisdiction: substantive issue jurisdiction, false arrest claim litigation. In the second chapter, by introducing the practice of various countries and main conventions, it is clear that the procedural jurisdiction of arrest of ships is an issue independent of substantive jurisdiction. On this basis, this paper analyzes the attribution of procedural jurisdiction under different arrest modes such as injunction, action in rem and false arrest, and expounds the enlightenment of the draft Convention on Civil and Commercial jurisdiction and Foreign judgments on the procedural jurisdiction of arrest of ships. Finally, the article analyzes the influence of arbitration and jurisdiction selection clause on the procedural jurisdiction of arrest of ships in combination with the judicial practice of various countries. The third chapter focuses on the jurisdiction principle of the most special arrest court in the system of arrest of ships, analyzes the relationship between the jurisdiction principles of the substantive jurisdiction of the arrest of ships, and focuses on the relationship between the jurisdiction of the court of arrest of ships and the jurisdiction of the agreement. In view of the conflict reason of entity problem jurisdiction, the paper puts forward some suggestions to alleviate the conflict. Because the place of arrest has many advantages which other connection points do not have, the arrest of ship becomes the first choice way for the parties to choose the place of action. In order to prevent the parties from abusing the right of action, the article puts forward the restrictive measures to the action of the place of choice through the arrest of the ship. Chapter four, on the basis of clarifying that false arrest claim is an independent tort action, expounds the theory of jurisdiction attribution. In addition, the provisions of the 1999 Convention on arrest of ships concerning the jurisdiction of claims for wrongful arrest of ships are introduced, and it is pointed out that this provision may lead to the inconsistency between the false arrest judgment and the substantive judgment. The fifth chapter analyzes the current provisions on the jurisdictional issues involved in the arrest of ships in China, and finds out the deficiencies, and from the appropriate recognition of the jurisdiction agreement on the choice of the procedural court for arrest of ships. (B) to add provisions to harmonize the jurisdictional interface between arrest measures and substantive issues between different States, This paper introduces the principle of inconvenient court and clarifies the jurisdiction and attribution of China's false arrest claim. The author puts forward some views on how to perfect the jurisdiction system of arrest of ships in our country.
【学位授予单位】：中国海洋大学
【学位级别】：硕士
【学位授予年份】：2009
【分类号】：D997.3;D915.2

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