论无单放货责任的诉讼时效
发布时间：2018-11-21 17:35
【摘要】：提单是国际贸易和海上运输的基石，作为国际贸易和海上运输的桥梁，提单在国际上的地位举足轻重。但是随着经济的发展，船速的加快，无单放货在实践中大量存在，使提单陷入信用危机，扰乱交易安全，阻碍海运事业的健康发展，由此引起的纠纷也日益增多，，其中相当多的纠纷与无单放货责任的诉讼时效有关，由于《中华人民共和国海商法》（以下简称《海商法》）没有单独规定无单放货的诉讼时效，只是在《海商法》第二百五十七条模糊的规定了就海上货物运输向承运人要求赔偿的请求权的诉讼时效，对于此条的规定，理论界与实务界长期以来存在着颇多争议，导致法院判决的差异性。要解决无单放货的诉讼时效问题，必须通过立法作出明确的规定。 诉讼时效不仅关系到法院审理案件的效率，还关系到当事人的权利能否实现。所以，对无单放货责任适用的诉讼时效作出统一的规定，是法院和海上货物运输的当事人都期待的。经过几个世纪的博弈，海上货物运输当事人的利益发生了根本性的变化，昔日处于绝对优势地位的船方已经合理回归，处于弱势地位的货方也逐渐将争取利益的期望变成了现实。本文着眼于平衡船货双方的利益，对无单放货的诉讼时效问题进行剖析，收集相关案例，总结归纳制度中存在的问题，借鉴发达国家的理论和实践经验，对无单放货责任适用的诉讼时效、时效的中止、中断和延长的问题均作了系统的阐述，在总结实践经验的基础上，提出了自己的观点。 本文的行文结构主要分为引言、正文和结论，其中正文包括以下四个部分： 第一是对无单放货概述。随着提单制度的发展，无单放货责任的定性之争越来越激烈。在国际贸易和结算领域，提单发挥着物权效力；在运输领域，提单在承运人和提单持有人之间形成了合同关系。基于此，人们常常混淆提单在运输领域和非运输领域的不同作用，导致无单放货责任的定性不论是在理论界还是在实务界都争议颇多，有侵权说、违约说、责任竞合说等不同的观点。所以，统一无单放货责任的定性具有理论价值和实践意义。基于此，无论从《海牙规则》、《维斯比规则》到《汉堡规则》均规定了凭单放货。 第二是无单放货责任适用的诉讼时效。诉讼时效有利于督促权利人行使权利，稳定社会经济秩序和经济关系，合理配置司法资源。所以，不论是国际公约还是各国的国内法均对无单放货责任适用的诉讼时效做出了规定。笔者在认真研究无单放货责任的理论，总结实践经验的基础上，认为无单放货责任的诉讼时效跟承运人承担责任的性质有关，如果提单持有人诉请承运人承担侵权责任，则应该适用《民法》中规定的两年的诉讼时效，如果提单持有人诉请承运人承担违约责任，则应该适用《海商法》中规定的一年的诉讼时效。 第三是无单放货责任的诉讼时效的起算点。在实践中，不仅无单放货责任适用的诉讼时效说法不一，而且对于时效的起算点也各执己见。我国《海商法》规定无单放货责任的诉讼时效应该从“交付或者应当交付货物之日”起计算，但是由于《海商法》中并没有明确规定“交付”的概念，无单放货中的“交货”不是合理、适当的交付，不属于《海商法》中的交付，所以考虑到承运人和提单持有人双方的利益，无单放货责任的诉讼时效从“应当交付货物之日”起计算。 第四是无单放货责任的诉讼时效的中止、中断和延长。《海商法》中关于时效中止的规定与《民法》中的规定很相似，但是由于海商案件的特殊性，在中止事由方面应该作出明确的规定；在时效的中断方面，仅有权利人向义务人提出要求不构成诉讼时效中断的法定事由，还必须有义务人明确表示或者承诺履行义务，此处的规定与民法的规定不同；关于时效是否可以由当事人约定延长，我国海商法没有明确的规定，不能不说这是很遗憾的，因为允许当事人协议延长时效期间的法律效力利大于弊，所以我国应该对此尽早做出规定。
[Abstract]:Bill of lading is the cornerstone of international trade and maritime transport, as a bridge for international trade and maritime transport. but with the development of the economy, the speed of the ship is accelerated, the single-release goods are in a large amount in practice, the bill of lading is caught in the credit crisis, the transaction safety is disturbed, the health development of the maritime business is hindered, and the disputes caused thereby are also increasing, In this case, a considerable number of disputes are related to the limitation of the limitation of the liability of the non-negotiable goods, and since the Maritime Law of the People's Republic of China (hereinafter referred to as the Maritime Law>) does not specify the limitation of the action of the single-release goods alone, The limitation of the limitation of the right of the carriage of goods to the carrier in respect of the carriage of goods by sea only in the case of the vague provisions of the Code of Maritime Law> Article 257, which has long existed in the theory and practice circles, has led to the difference of the judgment of the court. In order to solve the problem of the limitation of the limitation of the case-free goods, it is necessary to make clear provisions through the legislation. The limitation of action is not only related to the efficiency of the case of the court, but also whether the rights of the parties can implementation. Therefore, the limitation of the statute of limitation applicable to the liability of a single-release order is a uniform provision for both the court and the parties involved in the carriage of goods at sea After a few centuries of game, the interests of the parties to the carriage of goods by sea have changed radically, and the ship with the status of an absolute advantage has returned reasonably, and the goods that are in a position of weakness gradually become the expectation of the interest. In order to balance the interests of the two parties, this paper makes an analysis of the limitation of the legal limitation of the free goods, collects the relevant cases, summarizes the problems existing in the induction system, draws on the theory and practical experience of the developed countries, and applies the limitation and the limitation of the limitation to the liability of the free goods. The problems of suspension, interruption and extension are set forth in the system, and on the basis of summarizing the practical experience, the author puts forward his own. The text of this paper is mainly divided into the introduction, the text and the conclusion. The next four parts: first As the development of the bill of lading system, there is no definite responsibility for the delivery of the goods. in that field of international trade and settlement, the bill of lading play a real right; in the area of transport, the bill of lading is on the carrier and the holder of the bill of lading On the basis of this, people often confuse the different roles of the bill of lading in the field of transportation and non-transportation, leading to the qualitative, whether in the theoretical circle or in the practical world, that there is much controversy in the theoretical circle or in the practical world. On the other hand, it is reasonable to unify the responsibility of single-release goods. On the value and the practical significance, based on this, no matter from the Hague Rules>, the to the Hamburg Rules> The receipt of the voucher is specified. The second is no single. The limitation of action applicable to the discharge of the goods. The limitation of action is to urge the rights to exercise their rights, to stabilize the social and economic order and to the economy The relationship and the rational allocation of the judicial resources. Therefore, neither the international convention nor the national laws of the State shall be responsible for the non-single release of the goods In the paper, the author makes a careful study on the theory of the responsibility of the free goods and summarizes the practical experience, and considers that the limitation of the limitation of the liability of the bill of lading is related to the nature of the liability of the carrier, and if the holder of the bill of lading If the carrier is required to bear the liability for infringement, it shall apply the limitation of action for two years as set out in the Civil Code. If the holder of the bill of lading has the liability for breach of contract, it shall apply the Code of Maritime Law> The statute of limitation of one year specified in. The third is none. In practice, it is not only the limitation of the limitation of the limitation of the limitation of the liability of the single-release goods, but also the limitation of the limitation of the limitation of the limitation of the limitation of the limitation of the liability of the single-release goods. In China, the limitation of the limitation of the liability for single-release goods should be calculated from the 鈥渢he date of the delivery or the delivery of the goods鈥
本文编号：2347726
[Abstract]:Bill of lading is the cornerstone of international trade and maritime transport, as a bridge for international trade and maritime transport. but with the development of the economy, the speed of the ship is accelerated, the single-release goods are in a large amount in practice, the bill of lading is caught in the credit crisis, the transaction safety is disturbed, the health development of the maritime business is hindered, and the disputes caused thereby are also increasing, In this case, a considerable number of disputes are related to the limitation of the limitation of the liability of the non-negotiable goods, and since the Maritime Law of the People's Republic of China (hereinafter referred to as the Maritime Law>) does not specify the limitation of the action of the single-release goods alone, The limitation of the limitation of the right of the carriage of goods to the carrier in respect of the carriage of goods by sea only in the case of the vague provisions of the Code of Maritime Law> Article 257, which has long existed in the theory and practice circles, has led to the difference of the judgment of the court. In order to solve the problem of the limitation of the limitation of the case-free goods, it is necessary to make clear provisions through the legislation. The limitation of action is not only related to the efficiency of the case of the court, but also whether the rights of the parties can implementation. Therefore, the limitation of the statute of limitation applicable to the liability of a single-release order is a uniform provision for both the court and the parties involved in the carriage of goods at sea After a few centuries of game, the interests of the parties to the carriage of goods by sea have changed radically, and the ship with the status of an absolute advantage has returned reasonably, and the goods that are in a position of weakness gradually become the expectation of the interest. In order to balance the interests of the two parties, this paper makes an analysis of the limitation of the legal limitation of the free goods, collects the relevant cases, summarizes the problems existing in the induction system, draws on the theory and practical experience of the developed countries, and applies the limitation and the limitation of the limitation to the liability of the free goods. The problems of suspension, interruption and extension are set forth in the system, and on the basis of summarizing the practical experience, the author puts forward his own. The text of this paper is mainly divided into the introduction, the text and the conclusion. The next four parts: first As the development of the bill of lading system, there is no definite responsibility for the delivery of the goods. in that field of international trade and settlement, the bill of lading play a real right; in the area of transport, the bill of lading is on the carrier and the holder of the bill of lading On the basis of this, people often confuse the different roles of the bill of lading in the field of transportation and non-transportation, leading to the qualitative, whether in the theoretical circle or in the practical world, that there is much controversy in the theoretical circle or in the practical world. On the other hand, it is reasonable to unify the responsibility of single-release goods. On the value and the practical significance, based on this, no matter from the Hague Rules>, the
本文编号：2347726
本文链接：https://www.wllwen.com/falvlunwen/sflw/2347726.html
