中国海上责任保险法律分析
发布时间：2018-08-09 20:56
【摘要】：海上责任保险是以海上责任为保险标的的保险的总称，属于海上保险。中国海上责任保险，简而言之，是指以《海商法》第218条列明的“对第三人责任”为保险标的的保险。 调整我国海上责任保险的法律规范为《海商法》中关于海上保险合同的规定，《海商法》未做规定的，适用《保险法》的相关规定。但是，综观上述法律规范，当其适用于海上责任保险时，在实践中就会产生诸多不和谐之处，导致当事人在其中的法律地位无法明确，产生的问题无法妥善解决。可以说，相对于我国海上责任保险实践的蓬勃发展，相应的法律规范以及法律理论研究越来越显示出不完善的一面。 为了加强相关的法律理论研究，完善相关的法律规范，笔者通过综合运用历史研究法、语义分析法和对比研究法等研究方法，对海上责任保险实践及其适用规则(或法律规范)的互动规律和演进趋势、海上责任保险的法律性质、海上责任与船舶、货物或运费等客体被定性为保险标的过程中法律推理的区别以及我国现行法律规范中存在的疏漏或不恰当之处进行了初步的整理、分析和研究。 在海上责任保险领域，相关规则或法律规范以及法律理论与相应的实践之间呈现出一种有机的互动关系，二者相辅相成，互相促进，共同经历了一个从无到有，从不完善到逐渐完善的发展历程。目前，随着我国海上责任保险实践的繁荣发展，相应的法律规范和法律理论正亟待完善。 面对我国现行法律规范无法妥善的适用于海上责任保险实践的问题，笔者认为，从法律理论方面来说，海上责任虽然与船舶、货物等均被《海商法》第218条定性为保险标的，但是，海上责任被定性为保险标的过程中的法律推理与船舶、货物等其他客体被定性为保险标的过程中的法律推理是不同的。问题产生的原因就在于这两种法律推理之间的区别被忽视了。具体而言，海上责任之所以被定性为保险标的是因为其本身是一种损失，当其处于海上风险之下时，就会因为遭遇海上风险而产生；海上保险合同的目的就是为其不发生提供保障。而船舶、货物等其他客体被定性为保险标的是因为其本身是一种权利或经济利益，当其处于海上风险之下时，就会因为遭遇海上风险而受损；海上保险合同的目的就是为其保全提供保障。这个理论或可称为“保险标的定性过程理论”，是本文的核心理论。 根据上述理论，笔者对相关法律规范进行了初步的分析，解释了其适用于海上责 任保险实践时产生问题的原因，并相应提出了解决问题的初步建议，以期明确当事人 的法律地位，，妥善解决实践中出现的问题，为我国海上责任保险的健康发展略进绵薄 之力。
[Abstract]:Marine liability insurance is a general term of insurance with marine liability as the subject matter of insurance, which belongs to marine insurance. Chinese marine liability insurance, in short, refers to the "liability to third parties" listed in Article 218 of Maritime Law as the subject matter of insurance. In order to adjust the legal norm of marine liability insurance of our country to the provisions of maritime insurance contract in Maritime Law, the relevant provisions of Insurance Law shall apply to those that are not stipulated in Maritime Law. However, when the above legal norms are applied to marine liability insurance, there will be a lot of disharmony in practice, which leads to the parties' legal status in which can not be clear, and the problems can not be solved properly. It can be said that, compared with the vigorous development of marine liability insurance practice in China, the corresponding legal norms and legal theory research more and more show an imperfect side. In order to strengthen the relevant legal theoretical research and perfect the relevant legal norms, the author uses the historical research method, the semantic analysis method and the comparative research method, etc. The interactive law and evolution trend of the practice of marine liability insurance and its applicable rules (or legal norms), the legal nature of marine liability insurance, marine liability and ships, The difference between legal reasoning in the process of insurance and the omission or inappropriateness existing in the current legal norms of our country are preliminarily sorted, analyzed and studied as the object of goods or freight is defined as the subject matter of insurance. In the field of marine liability insurance, there is an organic interactive relationship between the relevant rules or legal norms, legal theory and corresponding practice. They complement each other, promote each other, and experience from scratch to existence together. The course of development from imperfection to gradual perfection. At present, with the prosperous development of marine liability insurance practice in China, the corresponding legal norms and legal theories need to be improved. In the face of the problem that the current legal norms of our country can not be properly applied to the practice of marine liability insurance, the author believes that, in terms of legal theory, although maritime liability and ships and goods are classified as the subject of insurance by Article 218 of the Maritime Law, However, the legal reasoning in the process of defining marine liability as the subject matter of insurance is different from that of other objects, such as ships and goods, which are characterized as the subject matter of insurance. The reason for the problem lies in the fact that the distinction between the two kinds of legal reasoning is ignored. Specifically, marine liability is characterized as the subject of insurance because it itself is a loss, when it is under the risk of the sea, it will come into being because of the risk at sea. The purpose of a marine insurance contract is to provide protection against its occurrence. The other objects, such as ship, cargo and so on, are classified as the subject of insurance because they are a kind of right or economic benefit, and when they are under the risk of the sea, they will be damaged because of the risk at sea. The purpose of a marine insurance contract is to provide protection for its preservation. This theory may be called "the qualitative process theory of insurance mark", which is the core theory of this paper. According to the above theory, the author makes a preliminary analysis of the relevant legal norms, and explains the reasons for the problems in the practice of marine liability insurance. And put forward corresponding preliminary suggestions to solve the problem, in order to clarify the legal status of the parties, and properly solve the problems in practice, For the healthy development of China's marine liability insurance slightly forward a modest force.
【学位授予单位】：上海海事大学
【学位级别】：硕士
【学位授予年份】：2004
【分类号】：D922.294;D922.284
本文编号：2175289
[Abstract]:Marine liability insurance is a general term of insurance with marine liability as the subject matter of insurance, which belongs to marine insurance. Chinese marine liability insurance, in short, refers to the "liability to third parties" listed in Article 218 of Maritime Law as the subject matter of insurance. In order to adjust the legal norm of marine liability insurance of our country to the provisions of maritime insurance contract in Maritime Law, the relevant provisions of Insurance Law shall apply to those that are not stipulated in Maritime Law. However, when the above legal norms are applied to marine liability insurance, there will be a lot of disharmony in practice, which leads to the parties' legal status in which can not be clear, and the problems can not be solved properly. It can be said that, compared with the vigorous development of marine liability insurance practice in China, the corresponding legal norms and legal theory research more and more show an imperfect side. In order to strengthen the relevant legal theoretical research and perfect the relevant legal norms, the author uses the historical research method, the semantic analysis method and the comparative research method, etc. The interactive law and evolution trend of the practice of marine liability insurance and its applicable rules (or legal norms), the legal nature of marine liability insurance, marine liability and ships, The difference between legal reasoning in the process of insurance and the omission or inappropriateness existing in the current legal norms of our country are preliminarily sorted, analyzed and studied as the object of goods or freight is defined as the subject matter of insurance. In the field of marine liability insurance, there is an organic interactive relationship between the relevant rules or legal norms, legal theory and corresponding practice. They complement each other, promote each other, and experience from scratch to existence together. The course of development from imperfection to gradual perfection. At present, with the prosperous development of marine liability insurance practice in China, the corresponding legal norms and legal theories need to be improved. In the face of the problem that the current legal norms of our country can not be properly applied to the practice of marine liability insurance, the author believes that, in terms of legal theory, although maritime liability and ships and goods are classified as the subject of insurance by Article 218 of the Maritime Law, However, the legal reasoning in the process of defining marine liability as the subject matter of insurance is different from that of other objects, such as ships and goods, which are characterized as the subject matter of insurance. The reason for the problem lies in the fact that the distinction between the two kinds of legal reasoning is ignored. Specifically, marine liability is characterized as the subject of insurance because it itself is a loss, when it is under the risk of the sea, it will come into being because of the risk at sea. The purpose of a marine insurance contract is to provide protection against its occurrence. The other objects, such as ship, cargo and so on, are classified as the subject of insurance because they are a kind of right or economic benefit, and when they are under the risk of the sea, they will be damaged because of the risk at sea. The purpose of a marine insurance contract is to provide protection for its preservation. This theory may be called "the qualitative process theory of insurance mark", which is the core theory of this paper. According to the above theory, the author makes a preliminary analysis of the relevant legal norms, and explains the reasons for the problems in the practice of marine liability insurance. And put forward corresponding preliminary suggestions to solve the problem, in order to clarify the legal status of the parties, and properly solve the problems in practice, For the healthy development of China's marine liability insurance slightly forward a modest force.
【学位授予单位】：上海海事大学
【学位级别】：硕士
【学位授予年份】：2004
【分类号】：D922.294;D922.284
【引证文献】
相关博士学位论文 前1条
1 殷悦;海上人身伤亡损害赔偿法律问题研究[D];武汉大学;2009年
相关硕士学位论文 前8条
1 王璐;海上责任保险第三人直接请求权制度研究[D];哈尔滨工程大学;2010年
2 杨雪;海盗赎金的保险赔偿责任研究[D];大连海事大学;2010年
3 张丽芳;海上自愿责任保险第三人对保险人权利研究[D];大连海事大学;2011年
4 张春颖;论船员人身伤亡损害赔偿直诉制度的建立[D];大连海事大学;2011年
5 武利海;海上强制责任保险第三人直接请求权问题研究[D];大连海事大学;2011年
6 苟菁;论《海商法》218条第三人与海上责任保险合同[D];大连海事大学;2006年
7 王建兰;海上责任保险中第三人直接请求权制度研究[D];大连海事大学;2008年
8 杨云君;海上责任保险第三人直接请求权制度研究[D];广东外语外贸大学;2009年
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