从责任竞合的角度研究倒签提单的若干法律问题
发布时间：2019-06-10 23:16
【摘要】： 提单最早源于中世纪,它是海上货物运输中由承运人向托运人所签发的一张单据。随着航运事业的不断发展,提单的作用在整个航海贸易中日益突出,占据了国际贸易中的重要地位。也正是因为提单重要性的不断提升,使得有关提单的立法得到了进一步的发展,从最开始的商人航海贸易的实践和习惯,发展到后来的判例、成文法,甚至法典。更值得注意的是,由于海上货物运输具有国际性,故提单的相关法律问题也迫切地需要通过国际统一的规定加以明确,这也推动了国际公约的制定。 现在,关于提单的立法正在不断完善,但实践中新的问题仍然层出不穷。倒签提单就是提单相关法律问题中最常见的一个。从海事审判实践来看,因倒签提单行为而引起的法律纠纷案件正日益增多。一般情况下,倒签提单都是基于使提单上的装船日期符合信用证的要求,以掩盖倒签的事实,从而最终达到顺利结汇的目的。尽管在实践审判中,法官基本上都判定倒签提单不符合我国《海商法》及《海牙规则》、《汉堡规则》等国际公约的规定,但直到目前,对于倒签提单的性质,倒签所应承担的责任,法律上还没有明确的规定,司法界和学术界对其性质的认定也颇有不同,比如侵权责任说、合同责任说、多重责任说、竞合责任说、缔约过失责任说等。众说纷纭,莫衷一是。鉴于倒签提单法律性质的认定,对于当事人权利义务的确定,责任的归属,以及诉讼的选择等都具有决定性的作用,因此对倒签提单法律性质及相关问题开展深入的研究,无论是在理论上还是在实践上,都具有相当的积极意义,同时对于倒签提单相关立法的完善也能起到推动和促进作用。 本文即试图从责任竞合角度入手,结合我国《民法通则》、《合同法》、《海商法》等有关法律及司法解释的规定,并参考《海牙规则》、《汉堡规则》等国际公约及国际惯例,联系航海贸易实践,以民商法原理为基础,深入剖析倒签提单的法律性质、法律责任,进而从研究的实际意义角度讨论当事人的择诉问题,旨在提出解决倒签提单中的利益纠纷,为当事人提供较为有利的救济途径,以应对海事海商中纷繁复杂的海事欺诈和投机行为,最终到达维护海事交易安全和良好的海运商业道德的目的。 全文4万多字,除了导言和结语外,文章共分为三章: 第一章:提单。本章对提单的定义及法律特征作了简要的概括,重点分析了提单的法律性质。基于提单在整个海运贸易中的核心地位,故对提单本身的分析和理解则构成了深入剖析倒签提单的必要前提条件。正是因为提单本身所特有的双重法律性质,从而使得倒签提单之法律定性有根可寻,有据可查。提单既是物权凭证,又是债权凭证。本章通过进一步理解其物权性与债权性的具体涵义,从而为下文对于倒签提单之法律性质的具体分析奠定了理论基础。 第二章:倒签提单及其法律性质。本章先从倒签提单的定义入手,进而阐述倒签提单本身的特征及其在海运贸易中产生的影响。在对倒签提单进行了初步的了解后,文章以提单的法律性质为基础,从提单所涉及的相关法律关系入手深入分析并具体论证倒签提单具有违约和侵权的双重属性,进而分析其双重属性所导致的责任竞合。 第三章:倒签提单的民事责任。本章共分四节,根据上文对倒签提单法律性质的论述,依次分析倒签提单的相关法律责任,但各节所论述的侧重点又不尽相同。第一节根据倒签提单所可能违反的三种合同关系而产生的违约责任分开进行讨论。行文就三种不同合同法律关系的特点选择最具现实意义或最具争议性的问题展开分析,涉及到了合同解除权、违约赔偿范围、承运人的损害赔偿责任限制等方面。第二节则具体分析了倒签提单之侵权责任的承担方式、赔偿种类及范围,并结合案例,生动、鲜明地剖析了实践中倒签提单之侵权责任的产生及承担。第三节和第四节是本文的重中之重。这部分内容从民法的相关理论入手,论述了违约责任与侵权责任竞合的三种学说,并列举了各国对于责任竞合的不同做法,而后说明我国目前对于责任竞合的相关规定,阐明我国关于这一问题的立法现状,最终落实到倒签提单的择诉问题上,通过理性分析违约之诉与侵权之诉的区别及各自的利弊,希望为实践中倒签提单的诉讼起到一定的指导作用。
[Abstract]:A bill of lading was originally derived from the Middle Ages, a document issued by the carrier to the shipper in the carriage of goods by sea. With the development of shipping business, the role of bill of lading has become more and more prominent in the whole navigation trade, and occupies an important position in international trade. It is also because of the continuous improvement of the importance of the bill of lading, so that the legislation on the bill of lading has been further developed, from the beginning of the practice and practice of the merchant's navigation trade, to later jurisprudence, statutory law, and even the code. It is more important to note that, as a result of the international nature of the carriage of goods by sea, the relevant legal aspects of the bill of lading are also urgently required to be clarified through international uniform provisions, which have also contributed to the development of the international convention. Now, the legislation on bill of lading is being continuously improved, but the new problems in practice The bill of lading is the legal question related to the bill of lading The most common one. From the practice of the maritime trial, the legal disputes caused by the act of the bill of lading In general, the bill of lading is based on the fact that the date of shipment on the bill of lading is in line with the letter of credit, in order to cover the fact that it is to be countersigned, so as to finally reach the order of the letter of credit. For the purpose of the settlement of a bill of lading, although in practice the judge basically determines that the bill of lading does not comply with the provisions of the International Covenant on Maritime Law> and the Hague Rules>, the Hamburg Rules, etc., but until now, for the nature of the bill of lading, the bill of lading The liability of the law is not clear, and the judicial and academic circles have different opinions on the nature of the contract, such as the liability of the tort, the responsibility of the contract, the multiple responsibility, the co-existence and the responsibility to say, the contracting. Fault liability theory and so on. In view of the determination of the legal nature of the bill of lading, the determination of the rights and obligations of the parties, the attribution of the responsibility, the choice of the lawsuit, etc. have a decisive effect, and therefore, the legal nature of the bill of lading and the related problems are deeply studied, whether in theory or in theory, At the same time, the improvement of the relevant legislation of the bill of lading can also play an important role in the development of the bill of lading. In this paper, we try to start with the angle of responsibility and concurrence, and combine with the relevant laws and judicial interpretations of the General Principles of Civil Law of China, the Contract Law and the Maritime Law, and also refer to the international conventions such as The Hague Rules, the Hamburg Rules and so on. On the basis of the principles of the civil and commercial law, the international practice, which is based on the principles of the civil and commercial law, deeply analyzes the legal nature and legal responsibility of the bill of lading, and then discusses the choice of the party from the point of view of the research, and aims at providing a solution to the dispute of interests in the bill of lading. The matter provides a more favorable remedy to deal with the complicated maritime fraud and speculation in the maritime business, and finally to the maintenance of the maritime trade safety And good marine commercial ethics. more than ten thousand words, in addition to the guide In addition to the words and the conclusion, the article is divided into three chapters: the first chapter: the bill of lading. This chapter is about the bill of lading. The definition and legal characteristics of the bill of lading are briefly summarized, and the legal nature of the bill of lading is analyzed, and the bill of lading is based on the core position of the bill of lading in the whole sea trade. The analysis and understanding of the bill of lading is a necessary prerequisite for the in-depth analysis of the reverse bill of lading, which is because of the dual nature of the bill of lading itself. the legal nature, so that the law of the bill of lading A bill of lading is both a real right certificate and a creditor's right certificate. In this chapter, the author further understands the specific meaning of the property right and the creditor's right, from and for the following legal nature of the bill of lading The paper lays a theoretical foundation for the concrete analysis of the bill of lading and the legal nature of the bill of lading. This paper starts with the definition of bill of lading, and then expounds the character of the bill of lading itself and its effect in the trade of sea. After the preliminary understanding of the bill of lading, the article is based on the legal nature of the bill of lading, and begins with the analysis of the relevant legal relationship between the bill of lading and the concrete demonstration. The opposite sign bill of lading has the double of default and infringement In chapter 3, the civil liability of the bill of lading is analyzed. The chapter is divided into four sections, which is based on the above. In this paper, the legal nature of the bill of lading is discussed in this paper, and the relevant legal liabilities of the bill of lading are analyzed in this order, but the emphasis is given in the sections. The first section is based on the separation of the liability for breach of contract arising from the three contractual relationships that may be violated by the bill of lading. The analysis of the problem of the nature of the bill of lading relates to the aspects of the right of the contract, the scope of the compensation for breach of contract, the limitation of the liability for damages of the carrier, etc. In the second part, the method of the tort liability of the bill of lading is analyzed in detail. The category and scope of the compensation, as well as the case, are vivid. The third and fourth section are the most important part of this paper. This part is based on the relevant theories of the civil law, and discusses the three theories of the concurrence of the liability for breach of contract and the liability of the torts. On the basis of the different practice of our country, it will be pointed out that our country's legislative status on this problem is finally put into effect on the issue of the choice of the bill of lading.
【学位授予单位】：华东政法学院
【学位级别】：硕士
【学位授予年份】：2006
【分类号】：D922.294;D996.19
本文编号：2496806
[Abstract]:A bill of lading was originally derived from the Middle Ages, a document issued by the carrier to the shipper in the carriage of goods by sea. With the development of shipping business, the role of bill of lading has become more and more prominent in the whole navigation trade, and occupies an important position in international trade. It is also because of the continuous improvement of the importance of the bill of lading, so that the legislation on the bill of lading has been further developed, from the beginning of the practice and practice of the merchant's navigation trade, to later jurisprudence, statutory law, and even the code. It is more important to note that, as a result of the international nature of the carriage of goods by sea, the relevant legal aspects of the bill of lading are also urgently required to be clarified through international uniform provisions, which have also contributed to the development of the international convention. Now, the legislation on bill of lading is being continuously improved, but the new problems in practice The bill of lading is the legal question related to the bill of lading The most common one. From the practice of the maritime trial, the legal disputes caused by the act of the bill of lading In general, the bill of lading is based on the fact that the date of shipment on the bill of lading is in line with the letter of credit, in order to cover the fact that it is to be countersigned, so as to finally reach the order of the letter of credit. For the purpose of the settlement of a bill of lading, although in practice the judge basically determines that the bill of lading does not comply with the provisions of the International Covenant on Maritime Law> and the Hague Rules>, the Hamburg Rules, etc., but until now, for the nature of the bill of lading, the bill of lading The liability of the law is not clear, and the judicial and academic circles have different opinions on the nature of the contract, such as the liability of the tort, the responsibility of the contract, the multiple responsibility, the co-existence and the responsibility to say, the contracting. Fault liability theory and so on. In view of the determination of the legal nature of the bill of lading, the determination of the rights and obligations of the parties, the attribution of the responsibility, the choice of the lawsuit, etc. have a decisive effect, and therefore, the legal nature of the bill of lading and the related problems are deeply studied, whether in theory or in theory, At the same time, the improvement of the relevant legislation of the bill of lading can also play an important role in the development of the bill of lading. In this paper, we try to start with the angle of responsibility and concurrence, and combine with the relevant laws and judicial interpretations of the General Principles of Civil Law of China, the Contract Law and the Maritime Law, and also refer to the international conventions such as The Hague Rules, the Hamburg Rules and so on. On the basis of the principles of the civil and commercial law, the international practice, which is based on the principles of the civil and commercial law, deeply analyzes the legal nature and legal responsibility of the bill of lading, and then discusses the choice of the party from the point of view of the research, and aims at providing a solution to the dispute of interests in the bill of lading. The matter provides a more favorable remedy to deal with the complicated maritime fraud and speculation in the maritime business, and finally to the maintenance of the maritime trade safety And good marine commercial ethics. more than ten thousand words, in addition to the guide In addition to the words and the conclusion, the article is divided into three chapters: the first chapter: the bill of lading. This chapter is about the bill of lading. The definition and legal characteristics of the bill of lading are briefly summarized, and the legal nature of the bill of lading is analyzed, and the bill of lading is based on the core position of the bill of lading in the whole sea trade. The analysis and understanding of the bill of lading is a necessary prerequisite for the in-depth analysis of the reverse bill of lading, which is because of the dual nature of the bill of lading itself. the legal nature, so that the law of the bill of lading A bill of lading is both a real right certificate and a creditor's right certificate. In this chapter, the author further understands the specific meaning of the property right and the creditor's right, from and for the following legal nature of the bill of lading The paper lays a theoretical foundation for the concrete analysis of the bill of lading and the legal nature of the bill of lading. This paper starts with the definition of bill of lading, and then expounds the character of the bill of lading itself and its effect in the trade of sea. After the preliminary understanding of the bill of lading, the article is based on the legal nature of the bill of lading, and begins with the analysis of the relevant legal relationship between the bill of lading and the concrete demonstration. The opposite sign bill of lading has the double of default and infringement In chapter 3, the civil liability of the bill of lading is analyzed. The chapter is divided into four sections, which is based on the above. In this paper, the legal nature of the bill of lading is discussed in this paper, and the relevant legal liabilities of the bill of lading are analyzed in this order, but the emphasis is given in the sections. The first section is based on the separation of the liability for breach of contract arising from the three contractual relationships that may be violated by the bill of lading. The analysis of the problem of the nature of the bill of lading relates to the aspects of the right of the contract, the scope of the compensation for breach of contract, the limitation of the liability for damages of the carrier, etc. In the second part, the method of the tort liability of the bill of lading is analyzed in detail. The category and scope of the compensation, as well as the case, are vivid. The third and fourth section are the most important part of this paper. This part is based on the relevant theories of the civil law, and discusses the three theories of the concurrence of the liability for breach of contract and the liability of the torts. On the basis of the different practice of our country, it will be pointed out that our country's legislative status on this problem is finally put into effect on the issue of the choice of the bill of lading.
【学位授予单位】：华东政法学院
【学位级别】：硕士
【学位授予年份】：2006
【分类号】：D922.294;D996.19
【引证文献】
相关硕士学位论文 前2条
1 李研;倒签提单法律性质研究[D];南昌大学;2010年
2 王谚飞;倒签提单下承运人赔偿责任研究[D];大连海事大学;2012年
，本文编号：2496806
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