提單轉(zhuǎn)讓后托運(yùn)人對(duì)承運(yùn)人訴權(quán)問(wèn)題的研究
發(fā)布時(shí)間：2019-04-20 09:59
【摘要】：提單是具有物權(quán)憑證功能的可轉(zhuǎn)讓運(yùn)輸單證,在現(xiàn)代海運(yùn)實(shí)踐中提單的背書轉(zhuǎn)讓往往會(huì)伴隨著運(yùn)輸合同訴權(quán)的轉(zhuǎn)移,不過(guò)訴權(quán)以這樣的方式轉(zhuǎn)移并不是自始不變的,而是經(jīng)過(guò)了一個(gè)復(fù)雜的發(fā)展和變化過(guò)程。在英美法系合同相對(duì)性原則下,訴權(quán)的轉(zhuǎn)移是被嚴(yán)格禁止的,因?yàn)榧s因理論要求締結(jié)合同的雙方當(dāng)事人交出自己的一部分利益來(lái)?yè)Q取對(duì)方的利益,第三人并不具有這樣的約因,因而被禁止享有訴權(quán)和其他權(quán)利。但是,海運(yùn)實(shí)踐的發(fā)展一步步突破了合同相對(duì)性原則的束縛,提單向海運(yùn)合同的第三人流轉(zhuǎn)成為了不可阻擋的潮流,加強(qiáng)對(duì)持有提單的第三人的保護(hù)、賦予持有提單第三人訴權(quán)、提單轉(zhuǎn)讓后訴權(quán)由托運(yùn)人完全轉(zhuǎn)讓給提單持有人逐漸成為了國(guó)際共識(shí)。不過(guò),隨著提單轉(zhuǎn)讓后托運(yùn)人訴權(quán)向提單持有人轉(zhuǎn)移,托運(yùn)人喪失訴權(quán)所可能遭受的損害并沒(méi)有得到應(yīng)有關(guān)注,托運(yùn)人的權(quán)益不僅可能而且正在受到侵害。因此,海運(yùn)實(shí)踐需要一個(gè)新的機(jī)制來(lái)解決托運(yùn)人權(quán)益的保護(hù)問(wèn)題,《鹿特丹規(guī)則》中創(chuàng)設(shè)的海運(yùn)控制權(quán)制度可以為該問(wèn)題的解決提供一個(gè)新的思路,海運(yùn)控制權(quán)雖然在提單轉(zhuǎn)讓后也隨之轉(zhuǎn)移到持有人的手中,但是,托運(yùn)人可以通過(guò)這項(xiàng)制度更加了解自己在持有提單時(shí)享有的權(quán)利,和提單在背書轉(zhuǎn)讓后自己權(quán)利的喪失,從而更加注意對(duì)自身權(quán)益的保護(hù),避免出現(xiàn)提單轉(zhuǎn)讓后托運(yùn)人權(quán)利無(wú)法實(shí)現(xiàn)的情況。本文分為四個(gè)部分:第一部分,簡(jiǎn)述訴權(quán)的概念和內(nèi)容、提單的產(chǎn)生和提單轉(zhuǎn)讓后托運(yùn)人訴權(quán)問(wèn)題的出現(xiàn);第二部分,第一,研究訴權(quán)中當(dāng)事人適格問(wèn)題,即托運(yùn)人概念和演變過(guò)程,承運(yùn)人概念和發(fā)展,第二,研究訴的利益問(wèn)題,即運(yùn)輸合同法律關(guān)系,嚴(yán)守合同相對(duì)性原則對(duì)提單轉(zhuǎn)讓后托運(yùn)人訴權(quán)的影響,和突破合同相對(duì)性原則對(duì)提單轉(zhuǎn)讓后托運(yùn)人訴權(quán)的影響,以及從與其他制度的關(guān)系上,探討解決提單轉(zhuǎn)讓后托運(yùn)人訴權(quán)問(wèn)題的新方法,如研究與中途停運(yùn)權(quán)和海運(yùn)控制權(quán)與此問(wèn)題的關(guān)系;第三部分,分析中國(guó)海事判決對(duì)提單轉(zhuǎn)讓后托運(yùn)人訴權(quán)問(wèn)題的態(tài)度和《鹿特丹規(guī)則》在此問(wèn)題上對(duì)中國(guó)的影響;第四部分,總結(jié)全文觀點(diǎn)。
[Abstract]:Bill of lading is a negotiable transport document with the function of proof of title. In modern maritime transport practice, the transfer of endorsement of bill of lading is often accompanied by the transfer of the right of action in the contract of carriage, but the transfer of the right of action in this way is not unchanged from the beginning. But after a complex process of development and change. Under the principle of relativity of contract in Anglo-American law system, the transfer of right of action is strictly prohibited, because the theory requires the parties who conclude the contract to surrender part of their own interests in exchange for the interests of the other party, and the third party does not have such a cause of engagement. As a result, it is prohibited to enjoy the right of action and other rights. However, the development of maritime transport practice has broken through the restraint of the principle of relativity of contract step by step, the circulation of bill of lading to the third party of maritime transport contract has become an irresistible trend, and the protection of the third party holding bill of lading has been strengthened. It has gradually become an international consensus to grant the right of action to a third party who holds a bill of lading and the right to post-appeal of a bill of lading from the shipper to the holder of the bill of lading However, with the transfer of the shipper's right of action to the holder of the bill of lading after the transfer of the bill of lading, the potential damage to the shipper's loss of claim has not received due attention, and the shipper's rights and interests are not only likely to be but also are being infringed. Therefore, maritime transport practice requires a new mechanism to solve the problem of protection of shipper's rights and interests, and the maritime control regime created in the Rotterdam rules can provide a new way of thinking for the solution of this problem. While the right to control by sea is transferred to the holder after the transfer of the bill of lading, the shipper may, through this system, have a better understanding of his rights in the possession of the bill of lading and the loss of his or her rights upon the transfer of the bill of lading, Thus pay more attention to the protection of their own rights and interests, avoid the transfer of bill of lading after the shipper's rights can not be realized. This paper is divided into four parts: the first part is a brief introduction of the concept and content of the right of action, the emergence of the bill of lading and the emergence of the shipper's right of action after the transfer of the bill of lading; The second part, the first part, studies the litigant fitness in the right of action, namely the concept and evolution of shipper, the concept and development of carrier, the second, the interest of litigation, that is, the legal relationship of contract of carriage, The impact of strict adherence to the principle of relativity of contract on the shipper's right of action after the transfer of the bill of lading, and the breakthrough of the principle of relativity of the contract on the shipper's right of action after the transfer of the bill of lading, as well as the relationship with other systems, To explore new ways to solve the problem of shipper's right of action after the transfer of bill of lading, such as the relationship between the right of stoppage and the control of maritime transportation; The third part analyzes the attitude of Chinese maritime judgment to the issue of shipper's right of action after the transfer of bill of lading and the influence of Rotterdam rules on this issue; the fourth part summarizes the full-text point of view.
【學(xué)位授予單位】：中國(guó)政法大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2011
【分類號(hào)】：D996.19;D922.294
本文編號(hào)：2461507
[Abstract]:Bill of lading is a negotiable transport document with the function of proof of title. In modern maritime transport practice, the transfer of endorsement of bill of lading is often accompanied by the transfer of the right of action in the contract of carriage, but the transfer of the right of action in this way is not unchanged from the beginning. But after a complex process of development and change. Under the principle of relativity of contract in Anglo-American law system, the transfer of right of action is strictly prohibited, because the theory requires the parties who conclude the contract to surrender part of their own interests in exchange for the interests of the other party, and the third party does not have such a cause of engagement. As a result, it is prohibited to enjoy the right of action and other rights. However, the development of maritime transport practice has broken through the restraint of the principle of relativity of contract step by step, the circulation of bill of lading to the third party of maritime transport contract has become an irresistible trend, and the protection of the third party holding bill of lading has been strengthened. It has gradually become an international consensus to grant the right of action to a third party who holds a bill of lading and the right to post-appeal of a bill of lading from the shipper to the holder of the bill of lading However, with the transfer of the shipper's right of action to the holder of the bill of lading after the transfer of the bill of lading, the potential damage to the shipper's loss of claim has not received due attention, and the shipper's rights and interests are not only likely to be but also are being infringed. Therefore, maritime transport practice requires a new mechanism to solve the problem of protection of shipper's rights and interests, and the maritime control regime created in the Rotterdam rules can provide a new way of thinking for the solution of this problem. While the right to control by sea is transferred to the holder after the transfer of the bill of lading, the shipper may, through this system, have a better understanding of his rights in the possession of the bill of lading and the loss of his or her rights upon the transfer of the bill of lading, Thus pay more attention to the protection of their own rights and interests, avoid the transfer of bill of lading after the shipper's rights can not be realized. This paper is divided into four parts: the first part is a brief introduction of the concept and content of the right of action, the emergence of the bill of lading and the emergence of the shipper's right of action after the transfer of the bill of lading; The second part, the first part, studies the litigant fitness in the right of action, namely the concept and evolution of shipper, the concept and development of carrier, the second, the interest of litigation, that is, the legal relationship of contract of carriage, The impact of strict adherence to the principle of relativity of contract on the shipper's right of action after the transfer of the bill of lading, and the breakthrough of the principle of relativity of the contract on the shipper's right of action after the transfer of the bill of lading, as well as the relationship with other systems, To explore new ways to solve the problem of shipper's right of action after the transfer of bill of lading, such as the relationship between the right of stoppage and the control of maritime transportation; The third part analyzes the attitude of Chinese maritime judgment to the issue of shipper's right of action after the transfer of bill of lading and the influence of Rotterdam rules on this issue; the fourth part summarizes the full-text point of view.
【學(xué)位授予單位】：中國(guó)政法大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2011
【分類號(hào)】：D996.19;D922.294
【引證文獻(xiàn)】
相關(guān)碩士學(xué)位論文 前1條
1 周思伊;我國(guó)《海商法》托運(yùn)人法律制度之完善[D];大連海事大學(xué);2012年
，本文編號(hào)：2461507
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