无单放货举证责任分配法律问题研究
发布时间：2018-08-12 18:02
【摘要】： 提单是用以证明海上货物运输合同和货物已经由承运人接收或装船,以及承运人保证据以交付货物的单证。承运人在卸货港凭正本提单向托运人、收货人交付所承运的货物,不仅是海上货物运输长期以来形成的惯例,也是海商法明确的法定义务。承运人未凭正本提单而对货物予以放行的行为构成无单放货。 在海事审判实践中,无单放货纠纷是海上货物运输合同履行中最为典型的纠纷之一,也是最为常见的海商案件之一。在无单放货纠纷中,各方当事人都需依法律规定提交全面、充分以及有效的利己证据来证明其主张事项的真实性,以最大限度地保护自己诉请“公力救济”的合法权利。在这种诉讼过程中,提交证据以证明其主张事项之程序规范一一举证责任制度,作为一项重要的诉讼制度早已成为一种基本的诉讼原则及司法实践。然而,当前在我国司法实践中存在着“重实体、轻程序”的现象,因而重新审视和强调“程序法”规范显得尤为重要。有鉴于此,本文从提单的视角,对举证责任分配的司法实践进行分析探讨,并提出完善对策和建议。 本文共分三个部分,共约两万字。 第一部分,分析案例,提出问题。笔者首先由案例入手分析了本案中的几个焦点问题,然后提出问题:无单放货举证责任在当事人双方如何配置才能体现公平正义的民事诉讼原则? 第二部分,探析无单放货举证责任分配适用路径。该部分首先分析了举证责任的双重含义,即行为意义上的举证责任、结果意义上的举证责任。接着分析了目前举证责任分配主要有的几种学说。在此之后,笔者总结了当前无单放货举证责任分配上存在的两种观点并进行了评析,并提出无单放货举证分配应立足于均衡提单持有人和承运人之间的利益,体现公平正义的诉讼原则的观点,以及无单放货举证分配的一般和特殊原则。最后,笔者总结提出了与无单放货举证责任相关的两个法律问题:1.无单放货纠纷性质认定不统一,导致举证责任配置不公平,2.无单放货纠纷的大量书证由于缺乏形式上的证据力,不具有证明力。 第三部分,提出对策,解决问题。针对由案例引申出的相关问题,笔者总结了各方观点,提出了自己的建议:1.法院根据无单放货纠纷举证责任分配原则划分各方当事人的举证责任。2.无单放货纠纷应定性为违约。这一认定在平衡提单持有人和承运人之间合法权益上具有重要的实践意义。3.无单放货证据,尤其是涉外证据效力认定所适用的制度规定过于笼统,应根据立法原则、当事人意思自治原则、必要性原则等九项原则加以修改和完善。
[Abstract]:Bill of lading is used to prove that the contract of carriage of goods by sea and the goods have been received or loaded by the carrier, and the carrier guarantees the delivery of the goods. At the port of discharge, the carrier delivers the goods to the shipper and the consignee by original bill of lading, which is not only the custom formed for a long time in the carriage of goods by sea, but also the legal obligation of maritime law. The carrier's failure to release the goods on the basis of the original bill of lading constitutes the release of the goods without a bill of lading. In the practice of maritime trial, the dispute of delivery without bill of lading is one of the most typical disputes in the performance of the contract of carriage of goods by sea, and is also one of the most common cases of maritime merchants. In the dispute of delivery of goods without bill, all parties should submit comprehensive, sufficient and effective evidence of self-interest in accordance with the law to prove the authenticity of their claims, so as to protect their legitimate right to appeal for "public relief" to the maximum extent. In the process of this kind of litigation, the system of burden of proof, the procedural norm of submitting evidence to prove its claim, has long been a basic litigation principle and judicial practice as an important litigation system. However, there exists the phenomenon of "attaching importance to substance rather than procedure" in our country's judicial practice at present, so it is particularly important to re-examine and emphasize the norms of "procedural Law". In view of this, this paper analyzes the judicial practice of burden of proof distribution from the perspective of bill of lading, and puts forward some countermeasures and suggestions. This article is divided into three parts, a total of about 20,000 words. The first part, analyzes the case, raises the question. The author first analyzes several focal points in this case from the case, and then puts forward the question: how to allocate the burden of proof without bill of lading in both parties to reflect the principle of fair and just civil action? The second part analyzes the applicable path of the distribution of the burden of proof. This part first analyzes the double meaning of the burden of proof, that is, the burden of proof in the sense of behavior and the burden of proof in the sense of result. Then it analyzes several theories about the distribution of burden of proof. After that, the author summarizes the two points of view on the distribution of burden of proof without bill of lading, and puts forward that the distribution of proof of delivery without bill of lading should be based on balancing the interests between the holder of bill of lading and the carrier. The viewpoint of litigation principle of fairness and justice, and the general and special principle of distribution of proof without bill delivery. Finally, the author sums up two legal issues related to the burden of proof without bill of lading: 1. The nature of no bill of delivery dispute is not uniform, resulting in unfair allocation of the burden of proof. Due to the lack of formal evidence, a large number of documents without bill-delivery dispute have no proof. The third part, puts forward the countermeasure, solves the problem. In view of the related problems derived from the case, the author summarizes the views of all parties and puts forward his own suggestion: 1. The court divides the burden of proof of the parties according to the principle of distribution of the burden of proof in the undocumented delivery dispute. The dispute over the delivery of goods without documentary evidence should be qualified as breach of contract. This determination has important practical significance in balancing the legitimate rights and interests between the holder of bill of lading and the carrier. The provisions of the system applicable to the confirmation of the validity of the evidence concerning foreign affairs are too general and should be revised and perfected according to the principles of legislation, the principle of party autonomy, the principle of necessity and so on.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2008
【分类号】：D922.294
本文编号：2179862
[Abstract]:Bill of lading is used to prove that the contract of carriage of goods by sea and the goods have been received or loaded by the carrier, and the carrier guarantees the delivery of the goods. At the port of discharge, the carrier delivers the goods to the shipper and the consignee by original bill of lading, which is not only the custom formed for a long time in the carriage of goods by sea, but also the legal obligation of maritime law. The carrier's failure to release the goods on the basis of the original bill of lading constitutes the release of the goods without a bill of lading. In the practice of maritime trial, the dispute of delivery without bill of lading is one of the most typical disputes in the performance of the contract of carriage of goods by sea, and is also one of the most common cases of maritime merchants. In the dispute of delivery of goods without bill, all parties should submit comprehensive, sufficient and effective evidence of self-interest in accordance with the law to prove the authenticity of their claims, so as to protect their legitimate right to appeal for "public relief" to the maximum extent. In the process of this kind of litigation, the system of burden of proof, the procedural norm of submitting evidence to prove its claim, has long been a basic litigation principle and judicial practice as an important litigation system. However, there exists the phenomenon of "attaching importance to substance rather than procedure" in our country's judicial practice at present, so it is particularly important to re-examine and emphasize the norms of "procedural Law". In view of this, this paper analyzes the judicial practice of burden of proof distribution from the perspective of bill of lading, and puts forward some countermeasures and suggestions. This article is divided into three parts, a total of about 20,000 words. The first part, analyzes the case, raises the question. The author first analyzes several focal points in this case from the case, and then puts forward the question: how to allocate the burden of proof without bill of lading in both parties to reflect the principle of fair and just civil action? The second part analyzes the applicable path of the distribution of the burden of proof. This part first analyzes the double meaning of the burden of proof, that is, the burden of proof in the sense of behavior and the burden of proof in the sense of result. Then it analyzes several theories about the distribution of burden of proof. After that, the author summarizes the two points of view on the distribution of burden of proof without bill of lading, and puts forward that the distribution of proof of delivery without bill of lading should be based on balancing the interests between the holder of bill of lading and the carrier. The viewpoint of litigation principle of fairness and justice, and the general and special principle of distribution of proof without bill delivery. Finally, the author sums up two legal issues related to the burden of proof without bill of lading: 1. The nature of no bill of delivery dispute is not uniform, resulting in unfair allocation of the burden of proof. Due to the lack of formal evidence, a large number of documents without bill-delivery dispute have no proof. The third part, puts forward the countermeasure, solves the problem. In view of the related problems derived from the case, the author summarizes the views of all parties and puts forward his own suggestion: 1. The court divides the burden of proof of the parties according to the principle of distribution of the burden of proof in the undocumented delivery dispute. The dispute over the delivery of goods without documentary evidence should be qualified as breach of contract. This determination has important practical significance in balancing the legitimate rights and interests between the holder of bill of lading and the carrier. The provisions of the system applicable to the confirmation of the validity of the evidence concerning foreign affairs are too general and should be revised and perfected according to the principles of legislation, the principle of party autonomy, the principle of necessity and so on.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2008
【分类号】：D922.294
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