论船长警察权
发布时间：2018-08-02 10:35
【摘要】：很久以前,人类就开始利用船舶进行海上运输活动。随着世界各地联系的日益加深以及科学技术的不断发展,海上运输变得更加快捷、高效,渐渐使它成为许多国家、地区重要的运输方式。但是船舶远离陆地,在茫茫大海上漂泊的漫长航程中,难免遇上诸如恶劣天气、疫情病变甚至是遭遇强盗等情况。为使船舶安全地劈波斩浪、远行万里,船长作为船舶的最高指挥者与管理者的作用不言而喻,因此船长被赋予各种公法、私法上的权力。而船长警察权就是其中一个重要部分,它是船长维护船舶秩序、保障在船人员、货物以及船舶安全的重要的公权力。因此本文以船长警察权为研究的出发点,比较归纳有关船长警察权的法律规定,探讨行使船长警察权的性质与法律后果,希望能为船长警察权的有关立法与制度建设略作绵力。本文共有四部分。 第一部分通过对船长有关概念的界定,从船员是否包含船长的角度,分析归纳各国对船长的相关规定,得出需要厘清船长与其它在船人员的结论。同时准确界定海商法所探讨的船长的范围。第二部分从警察学领域中一般意义的警察权的学说入手,结合海上运输的自身特征,总结船长警察权的相关概念与特征,分析其构成要素与正确行使船长警察权的方式与范围。第三部分通过分析与归纳各国家与地区关于船长警察权的立法与制度建设,发现我国对有关船长警察权的立法规定只是散见在各部法律、法规中,并未建立完善的船长警察权制度。从而,提出就保障船长警察权的有效实施的问题,如建议引入“惩戒权”及参考相关行使方式与程序等。第四部分通过分析船长警察权侵权责任的概念和范围,分析船长警察权侵权责任的性质,指出船长警察权侵权责任并非私法领域的侵权责任。另外,对国家赔偿制度的概念与要素进行分析,同时以国家赔偿制度的五大要素为着眼点,对船长以及船长警察权相关的权力性质、行为性质进行分析,得出单纯从私法的角度对船长违法行使船长警察权造成损害后果进行归责的不合理性。最后,对船长警察权侵权责任适用国家赔偿制度进行展望。
[Abstract]:Long ago, man began to use ships for maritime transport. With the deepening of connections and the development of science and technology, maritime transportation becomes more efficient and faster, which makes it an important mode of transportation in many countries and regions. But the ship is far from land, and in the long voyage of the vast sea, it is inevitable to encounter such conditions as bad weather, epidemic disease and even encounter bandits and so on. In order to make the ship wave and wave safely, the master of the ship, as the supreme commander and manager of the ship, is self-evident, so the master is endowed with various powers in public and private law. The captain's police power is one of the important parts, which is an important public power for the captain to maintain the ship's order and ensure the ship's personnel, cargo and ship's safety. Therefore, this paper takes the captain's police power as the starting point, compares and sums up the legal provisions of the captain's police power, discusses the nature and legal consequences of exercising the captain's police power, and hopes to make a little effort for the legislation and system construction of the captain's police power. There are four parts in this paper. The first part through the definition of the concept of the captain, from the point of view of whether the crew includes the captain, analyzes and summarizes the relevant provisions of various countries to the captain, and draws the conclusion that it is necessary to clarify the captain and other persons on board the ship. At the same time accurately define the maritime law explored the scope of the captain. The second part begins with the theory of police power in general meaning in the field of police science, combining with the characteristics of maritime transportation, summarizes the related concepts and characteristics of the captain's police power, analyzes its constituent elements and the way and scope of correctly exercising the captain's police power. In the third part, by analyzing and summarizing the legislation and system construction of the captain's police power in various countries and regions, it is found that the legislative provisions on the captain's police power in our country are only scattered in the laws and regulations of various departments. There is no perfect system of captain's police power. Therefore, the paper puts forward some problems to ensure the effective implementation of the captain's police power, such as the introduction of "disciplinary power" and reference to relevant exercise methods and procedures. The fourth part analyzes the concept and scope of the tort liability of the captain's police power, analyzes the nature of the tort liability of the captain's police power, and points out that the tort liability of the captain's police power is not the tort liability in the field of private law. In addition, the concept and elements of the national compensation system are analyzed. At the same time, with the five elements of the national compensation system as the focus, the power nature and the behavior nature of the captain and the captain's police power are analyzed. The conclusion is that it is not reasonable to impute the damage consequences of the captain's illegal exercise of the captain's police power from the angle of private law. Finally, the application of the state compensation system to the tort liability of the captain's police power is prospected.
【学位授予单位】：大连海事大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D922.14
[Abstract]:Long ago, man began to use ships for maritime transport. With the deepening of connections and the development of science and technology, maritime transportation becomes more efficient and faster, which makes it an important mode of transportation in many countries and regions. But the ship is far from land, and in the long voyage of the vast sea, it is inevitable to encounter such conditions as bad weather, epidemic disease and even encounter bandits and so on. In order to make the ship wave and wave safely, the master of the ship, as the supreme commander and manager of the ship, is self-evident, so the master is endowed with various powers in public and private law. The captain's police power is one of the important parts, which is an important public power for the captain to maintain the ship's order and ensure the ship's personnel, cargo and ship's safety. Therefore, this paper takes the captain's police power as the starting point, compares and sums up the legal provisions of the captain's police power, discusses the nature and legal consequences of exercising the captain's police power, and hopes to make a little effort for the legislation and system construction of the captain's police power. There are four parts in this paper. The first part through the definition of the concept of the captain, from the point of view of whether the crew includes the captain, analyzes and summarizes the relevant provisions of various countries to the captain, and draws the conclusion that it is necessary to clarify the captain and other persons on board the ship. At the same time accurately define the maritime law explored the scope of the captain. The second part begins with the theory of police power in general meaning in the field of police science, combining with the characteristics of maritime transportation, summarizes the related concepts and characteristics of the captain's police power, analyzes its constituent elements and the way and scope of correctly exercising the captain's police power. In the third part, by analyzing and summarizing the legislation and system construction of the captain's police power in various countries and regions, it is found that the legislative provisions on the captain's police power in our country are only scattered in the laws and regulations of various departments. There is no perfect system of captain's police power. Therefore, the paper puts forward some problems to ensure the effective implementation of the captain's police power, such as the introduction of "disciplinary power" and reference to relevant exercise methods and procedures. The fourth part analyzes the concept and scope of the tort liability of the captain's police power, analyzes the nature of the tort liability of the captain's police power, and points out that the tort liability of the captain's police power is not the tort liability in the field of private law. In addition, the concept and elements of the national compensation system are analyzed. At the same time, with the five elements of the national compensation system as the focus, the power nature and the behavior nature of the captain and the captain's police power are analyzed. The conclusion is that it is not reasonable to impute the damage consequences of the captain's illegal exercise of the captain's police power from the angle of private law. Finally, the application of the state compensation system to the tort liability of the captain's police power is prospected.
【学位授予单位】：大连海事大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D922.14
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