中德法律关于海运承运人为其履行辅助人承担责任规定的比较研究
发布时间：2019-06-13 18:47
【摘要】： 承运人的履行辅助人在现代海上货物运输中发挥着十分重要的作用。现代化的货物运输的有效快速完成,不仅依赖于承运人雇佣的船长和船员的辅助履行,而且需航运相关产业,如驳船业、装卸业、仓储业等行业的协助。此外,货物运输途中发生的毁损、灭失、迟延等亦多数是由于履行辅助人的过失造成。因此,正确厘清合同当事人和履行辅助人的法律关系,明确辅助人、承运人以及船舶所有人的法律地位,对提高交易效率、平衡各方利益、减少纠纷乃至促进贸易和航运业的发展和整个社会经济的运行均不无裨益。 德国法中解决海运承运人的履行辅助人的过错和承运人本人的责任问题的依据是《德国商法典》第607条和第485条、《德国民法典》第278条和第831条。它们织成了一张十分严密的法网,几乎所有的有关承运人的履行辅助人的责任问题,都可以通过上述四个条文的解释、配合予以解决。相比之下,我国《海商法》的规定条文虽多但不够严密。《海商法》第51条第(十二)项、第54条、第58条第二款、第60条第二款第二句以及第61条中规定的实际承运人、受雇人、代理人事实上均为海运承运人的履行辅助人。我国民法亦未明确规定履行辅助人概念,由此特别法和一般法未能有效地配合协调,留下了诸多漏洞。 有鉴于此,笔者从海上货物运输中承运人为其履行辅助人承担责任规定着手,比较分析中国法和德国法相关规定、判例和学说,分析中国法和德国法下因承运人的履行辅助人的过失发生货损或造成第三方损害时,承运人应否承担责任以及如何承担责任等问题。在研究方法上,笔者采用功能主义的比较法研究和实例研究并重,并辅以请求权为基础的思考方法,以期对问题有新的见解。同时,笔者对民法和海商法的相关规定进行了系统的梳理,以打通一般法和特别法。在文章结构上,全文共六个部分,即:前言,第1章海运承运人的履行辅助人的含义和种类,第2章民法上的履行辅助人过错和本人责任,第3章履行辅助人的过错和海运承运人的责任,第4章完善我国《海商法》相关规定的建议,结论。 通过对德国法和中国法的剖析和比较,笔者提出在《海商法》第四章中规定承运人的履行辅助人的含义和范围、明确承运人应当对其履行辅助人的过错如同自己的过错一样负同一范围的责任。但如果损失是由于驾驶、管理船舶的行为或火灾等引起,承运人仅对其本人的过失承担责任等五点建议,以期完善我国海商法。
[Abstract]:The carrier's performance assistant plays a very important role in the modern carriage of goods by sea. The effective and rapid completion of modern freight transportation depends not only on the auxiliary performance of the captain and crew employed by the carrier, but also on the assistance of shipping related industries, such as barge industry, loading and unloading industry, storage industry and so on. In addition, most of the damage, loss and delay in the transportation of goods are caused by the fault of the assistant. Therefore, it is beneficial to improve the transaction efficiency, balance the interests of all parties, reduce disputes and even promote the development of trade and shipping industry and the operation of the whole society and economy to clarify the legal relationship between the parties to the contract and the performance assistant, and to clarify the legal status of the auxiliary party, the carrier and the owner of the ship. The solution to the fault of the performance assistant of the maritime carrier and the liability of the carrier himself in German law is based on articles 607 and 485 of the German Commercial Code and articles 278 and 831 of the German Civil Code. They have been woven into a very strict legal net, and almost all the problems relating to the performance of the obligations of the carrier can be solved through the interpretation of the above four provisions. In contrast, the provisions of Maritime Law of our country are many but not strict enough. Article 51 (12), Article 54, Article 58, paragraph 2, Article 60, paragraph 2, the second sentence of Article 60 and Article 61, the actual carrier, the servant and the agent are in fact the performance auxiliaries of the maritime carrier. The concept of performing assistant is not clearly stipulated in the civil law of our country, so the special law and the general law can not cooperate effectively with each other, leaving many loopholes. In view of this, the author starts with the provisions on the liability of the carrier for its performance assistant in the carriage of goods by sea, compares and analyzes the relevant provisions, cases and theories of Chinese law and German law, and analyzes whether the carrier should bear the liability and how to bear the liability in the event of cargo damage or third party damage caused by the fault of the carrier's performance assistant under Chinese law and German law. In terms of research methods, the author pays equal attention to the comparative study of functionalism and the case study, supplemented by the thinking method based on the right of claim, in order to have a new opinion on the problem. At the same time, the author systematically combs the relevant provisions of civil law and maritime law in order to get through the general law and special law. In the structure of the article, the full text has six parts, namely: preface, chapter 1 the meaning and type of performance assistant of maritime carrier, chapter 2, fault and liability of performance assistant in civil law, chapter 3, fault of assistant and liability of maritime carrier, chapter 4, suggestion of perfecting the relevant provisions of maritime law of our country, conclusion. Through the analysis and comparison of German law and Chinese law, the author puts forward that the meaning and scope of the carrier's performance assistant should be stipulated in the fourth chapter of Maritime Law, and it is clear that the carrier should bear the same scope of liability for the fault of its performance assistant as its own fault. However, if the loss is caused by driving, managing the ship or fire, the carrier is only responsible for its own fault, in order to improve the maritime law of our country.
【学位授予单位】：上海海事大学
【学位级别】：硕士
【学位授予年份】：2007
【分类号】：D922.29
本文编号：2498734
[Abstract]:The carrier's performance assistant plays a very important role in the modern carriage of goods by sea. The effective and rapid completion of modern freight transportation depends not only on the auxiliary performance of the captain and crew employed by the carrier, but also on the assistance of shipping related industries, such as barge industry, loading and unloading industry, storage industry and so on. In addition, most of the damage, loss and delay in the transportation of goods are caused by the fault of the assistant. Therefore, it is beneficial to improve the transaction efficiency, balance the interests of all parties, reduce disputes and even promote the development of trade and shipping industry and the operation of the whole society and economy to clarify the legal relationship between the parties to the contract and the performance assistant, and to clarify the legal status of the auxiliary party, the carrier and the owner of the ship. The solution to the fault of the performance assistant of the maritime carrier and the liability of the carrier himself in German law is based on articles 607 and 485 of the German Commercial Code and articles 278 and 831 of the German Civil Code. They have been woven into a very strict legal net, and almost all the problems relating to the performance of the obligations of the carrier can be solved through the interpretation of the above four provisions. In contrast, the provisions of Maritime Law of our country are many but not strict enough. Article 51 (12), Article 54, Article 58, paragraph 2, Article 60, paragraph 2, the second sentence of Article 60 and Article 61, the actual carrier, the servant and the agent are in fact the performance auxiliaries of the maritime carrier. The concept of performing assistant is not clearly stipulated in the civil law of our country, so the special law and the general law can not cooperate effectively with each other, leaving many loopholes. In view of this, the author starts with the provisions on the liability of the carrier for its performance assistant in the carriage of goods by sea, compares and analyzes the relevant provisions, cases and theories of Chinese law and German law, and analyzes whether the carrier should bear the liability and how to bear the liability in the event of cargo damage or third party damage caused by the fault of the carrier's performance assistant under Chinese law and German law. In terms of research methods, the author pays equal attention to the comparative study of functionalism and the case study, supplemented by the thinking method based on the right of claim, in order to have a new opinion on the problem. At the same time, the author systematically combs the relevant provisions of civil law and maritime law in order to get through the general law and special law. In the structure of the article, the full text has six parts, namely: preface, chapter 1 the meaning and type of performance assistant of maritime carrier, chapter 2, fault and liability of performance assistant in civil law, chapter 3, fault of assistant and liability of maritime carrier, chapter 4, suggestion of perfecting the relevant provisions of maritime law of our country, conclusion. Through the analysis and comparison of German law and Chinese law, the author puts forward that the meaning and scope of the carrier's performance assistant should be stipulated in the fourth chapter of Maritime Law, and it is clear that the carrier should bear the same scope of liability for the fault of its performance assistant as its own fault. However, if the loss is caused by driving, managing the ship or fire, the carrier is only responsible for its own fault, in order to improve the maritime law of our country.
【学位授予单位】：上海海事大学
【学位级别】：硕士
【学位授予年份】：2007
【分类号】：D922.29
【引证文献】
相关博士学位论文 前1条
1 郑志军;国际海运承运人之履行辅助人责任问题研究[D];华东政法大学;2011年
，本文编号：2498734
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