定期租船合同中停租条款有关法律问题研究
发布时间：2018-07-23 17:35
【摘要】： 停租条款规定在一些特定情况下承租人可以中止向出租人支付租金的义务,它是定期租船合同中的重要条款,正确全面地理解这一条款有着一定的实际意义。由于航运实践中使用的定期租船合同范本绝大多数都约定适用英国法,故英国法律是解决期租合同纠纷最常见最有用的法律。除本文另有提及外,本文作者通过对英国法律的分析研究,试图对停租条款相关的法律问题及其与租约其他条款的关系做以梳理,结合有关的案例分析,对有关停租条款的规定做出全面和正确的理解与阐述,希望对于今后承、租双方洽谈租约以及避免纠纷有一定的借鉴作用。 文中首先对停租条款进行概述,阐明在定期租船合同中订入停租条款的必要性,同时简要介绍了租约中租金支付的方式及租金必须足额按时地支付。而后分析停租条款的性质,即停租条款是风险分摊条款,从其订立目的及其适用上可以得出停租条款与损害赔偿不同的结论;并且,停租条款与违约是完全独立的,是“不管过失规定”;虽然停租条款可以理解为一种免责条款,但当它与免责条款发生冲突时,停租条款仍然适用,是独立于免责条款之外的。进而第二章对停租条款做以解释并分析了停租权的行使,实践中对停租条款的争议多是发生在对条款的理解上,因此文章中结合相关案例分析“承租人需要的服务”,“第三方的干预”与“whatsoever”的应用及“阻止船舶完全工作的原因”,同时阐述条款解释中存在的困难。关于停租权的行使,也需要满足三个条件;在确定停租成立后,便需要计算停租的时间,这又与停租条款的分类有关,从而引出英美对净时间损失条款解释上的不同;而且,实践中停租权的行使也有技巧,承租人不能贸然从租金中扣除停租金额。虽然实务中的停租条款并非千篇一律,但都是在租约范本的基础上修订而成的,因此第三章中具体研究四个标准范本和中国海商法中的停租事项。在掌握停租事由后,第四章再进一步探讨停租条款与雇佣赔偿条款及附加条款。近年来,常有默示担保下的“赔偿”与停租相冲突的案例出现,这需要从承租人可做出指令的范围入手,分析至雇佣赔偿下的默示担保的应用;附加条款做为停租条款的补充,更合理地保护了承租人的利益。最后借第五章对停租问题做出总结。
[Abstract]:The termination clause provides that the lessee may suspend the obligation to pay rent to the shipowner under certain circumstances. It is an important clause in the term charter contract. It has certain practical significance to understand this clause correctly and comprehensively. English law is the most common and useful law to settle the dispute of term charter contract because most of the models of time charter contract used in shipping practice are agreed to apply English law. Unless otherwise mentioned in this paper, the author tries to sort out the legal problems related to the termination of tenancy clause and its relationship with other provisions of the lease through the analysis of British law. This paper makes a comprehensive and correct understanding and exposition on the stipulation of the termination clause, and hopes that it can be used for reference for the future negotiation of lease agreement and the avoidance of disputes between the two parties. In this paper, the termination clause is first summarized, and the necessity of including the termination clause in the term charter contract is clarified. At the same time, the way of rent payment in the lease and the payment of rent must be paid in full and on time. Then it analyzes the nature of the termination clause, that is, the termination clause is a risk-sharing clause, and from its purpose and its application, we can draw the conclusion that the termination clause is different from the damages, and that the termination clause and the breach of contract are completely independent. It is "regardless of negligence"; although the termination clause can be understood as an exemption clause, when it conflicts with the exemption clause, the suspension clause still applies and is independent of the exemption clause. The second chapter explains the termination clause and analyzes the exercise of the right to stop renting. In practice, the dispute about the termination clause is mostly on the understanding of the clause, so the article analyzes the "service needed by the lessee" in combination with the relevant cases. The application of "third party intervention" and "whatsoever" and "reasons for preventing the ship from working completely" are also discussed, and the difficulties existing in the interpretation of the clause are also discussed. There are also three conditions to be satisfied for the exercise of the right to stop renting. After the establishment of the suspension, we need to calculate the time of termination, which is related to the classification of termination clauses, which leads to different interpretations of net time loss clauses in the United States and the United States. In practice, the exercise of the right to stop renting also has skills, the lessee can not rashly deduct the withdrawal amount from the rent. Although the termination clauses are not uniform in practice, they are all revised on the basis of the model lease. Therefore, the third chapter specifically studies the four standard models and the suspension of lease in Chinese maritime law. Chapter four further discusses the termination clause, the employment compensation clause and the additional clause. In recent years, there are often cases in which "compensation" under implied guarantee conflicts with cessation of lease, which needs to be analyzed from the scope of the order that the lessee can make to the application of implied guarantee under employment compensation; the additional clause is used as a supplement to the termination clause. More reasonable protection of the interests of the lessee. Finally, the fifth chapter to make a summary of the issue of suspension of rent.
【学位授予单位】：大连海事大学
【学位级别】：硕士
【学位授予年份】：2008
【分类号】：D996.19
本文编号：2140138
[Abstract]:The termination clause provides that the lessee may suspend the obligation to pay rent to the shipowner under certain circumstances. It is an important clause in the term charter contract. It has certain practical significance to understand this clause correctly and comprehensively. English law is the most common and useful law to settle the dispute of term charter contract because most of the models of time charter contract used in shipping practice are agreed to apply English law. Unless otherwise mentioned in this paper, the author tries to sort out the legal problems related to the termination of tenancy clause and its relationship with other provisions of the lease through the analysis of British law. This paper makes a comprehensive and correct understanding and exposition on the stipulation of the termination clause, and hopes that it can be used for reference for the future negotiation of lease agreement and the avoidance of disputes between the two parties. In this paper, the termination clause is first summarized, and the necessity of including the termination clause in the term charter contract is clarified. At the same time, the way of rent payment in the lease and the payment of rent must be paid in full and on time. Then it analyzes the nature of the termination clause, that is, the termination clause is a risk-sharing clause, and from its purpose and its application, we can draw the conclusion that the termination clause is different from the damages, and that the termination clause and the breach of contract are completely independent. It is "regardless of negligence"; although the termination clause can be understood as an exemption clause, when it conflicts with the exemption clause, the suspension clause still applies and is independent of the exemption clause. The second chapter explains the termination clause and analyzes the exercise of the right to stop renting. In practice, the dispute about the termination clause is mostly on the understanding of the clause, so the article analyzes the "service needed by the lessee" in combination with the relevant cases. The application of "third party intervention" and "whatsoever" and "reasons for preventing the ship from working completely" are also discussed, and the difficulties existing in the interpretation of the clause are also discussed. There are also three conditions to be satisfied for the exercise of the right to stop renting. After the establishment of the suspension, we need to calculate the time of termination, which is related to the classification of termination clauses, which leads to different interpretations of net time loss clauses in the United States and the United States. In practice, the exercise of the right to stop renting also has skills, the lessee can not rashly deduct the withdrawal amount from the rent. Although the termination clauses are not uniform in practice, they are all revised on the basis of the model lease. Therefore, the third chapter specifically studies the four standard models and the suspension of lease in Chinese maritime law. Chapter four further discusses the termination clause, the employment compensation clause and the additional clause. In recent years, there are often cases in which "compensation" under implied guarantee conflicts with cessation of lease, which needs to be analyzed from the scope of the order that the lessee can make to the application of implied guarantee under employment compensation; the additional clause is used as a supplement to the termination clause. More reasonable protection of the interests of the lessee. Finally, the fifth chapter to make a summary of the issue of suspension of rent.
【学位授予单位】：大连海事大学
【学位级别】：硕士
【学位授予年份】：2008
【分类号】：D996.19
【引证文献】
相关期刊论文 前1条
1 鲁杨;郑雷;;对“维多利亚号”租船纠纷案的评析[J];武大国际法评论;2011年02期
，本文编号：2140138
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