論海盜概念構(gòu)成要件之“為私人目的”
發(fā)布時間：2019-02-23 16:11
【摘要】：海盜可以分為廣義的海盜和狹義的海盜,狹義的海盜是指在《聯(lián)合國海洋法公約》框架下的海盜,即為滿足“私人目的”而從事海上劫掠行為的海盜。廣義上的海盜是指運(yùn)用暴力手段在海上搶劫其他船只、飛機(jī)或其上財物的行為及實施該行為的人或組織。海盜的出現(xiàn)由來以久,二戰(zhàn)后,在一些地區(qū)出現(xiàn)了龐大的海盜集團(tuán),標(biāo)志著現(xiàn)代海盜時代的來臨。 當(dāng)今針對海盜已經(jīng)有很多國際組織和國際法律對其進(jìn)行規(guī)制。其中“為私人目的”是《聯(lián)合國海洋法公約》中海盜概念的構(gòu)成要件之一�！盀樗饺四康摹笔侵阜请`屬于某一政治性組織的成員或組織,以獲取財物為目的,并且獲得的財物為私人所用的劫掠行為�！八铰印笔呛１I與“私人目的”的歷史聯(lián)結(jié)點。私掠是盛行于16-18世紀(jì)由國家出于政治目的授予許可證的海盜。為了區(qū)別私掠和沒有授予許可證的海盜,“為私人目的”就成為了立法中海盜的要件之一,這種立法習(xí)慣隨后保留了下來。 當(dāng)今海盜出現(xiàn)了“恐怖主義化”的傾向,海盜開始與恐怖主義相勾結(jié),必然產(chǎn)生海盜的政治性。這就與傳統(tǒng)的海盜概念相違背�！八饺四康摹焙１I構(gòu)成要件的很多缺陷與不足逐漸顯露。有一批國際法律文件已經(jīng)開始嘗試突破《聯(lián)合國海洋法公約》中關(guān)于海盜概念的“私人目的”要件。 筆者認(rèn)為,海盜概念的“為私人要件”應(yīng)當(dāng)廢除。同時,也應(yīng)當(dāng)建立一套專門規(guī)定海盜的國際性法律。海盜行為不完全等于海上恐怖主義行為,也不完全等同于海上暴力行為,這三者擁有一個共同的交集。取消海盜概念的“私人目的”要件,不是為了將所有的海上暴力行為都納入海盜行為之中,而是為了添補(bǔ)立法空白。海盜與恐怖主義的法律競合,是較為合適的處理方式。 本文共分為四章,第一章介紹海盜與對海盜進(jìn)行規(guī)制的主要國際法律。第二章介紹“私人要件”在海盜立法中的概念、成因和發(fā)展,并介紹海盜和“私人目的”歷史聯(lián)結(jié)點——私掠。第三章介紹“私人目的”存在的缺陷與面臨的挑戰(zhàn),并對“私人目的”要件在打擊現(xiàn)代海盜中存在的缺陷進(jìn)行一些討論。第四章討論海盜概念“私人目的”構(gòu)成要件的存廢問題,以及如何構(gòu)建新的法律制度。最終本文認(rèn)為,應(yīng)該建立海盜與海上恐怖主義的法律競合制度,賦予各國在處理這類問題上一定的自由裁量權(quán)。
[Abstract]:Piracy can be divided into two categories: piracy in a broad sense and piracy in a narrow sense, which refers to pirates under the framework of the United Nations Convention on the Law of the Sea (UNCLOS), that is, pirates engaged in acts of looting at sea in order to satisfy "private purposes". In a broad sense, piracy refers to the use of violent means to rob other ships, aircraft or their belongings at sea, and the person or organization that commits the act. After World War II, large pirate groups appeared in some areas, marking the advent of the modern pirate era. Nowadays, there are many international organizations and laws regulating piracy. Among them, "for private purposes" is one of the constitutive elements of the concept of piracy in the United Nations Convention on the Law of the Sea. "for private purposes" refers to a member or organization which is not affiliated with a political organization and whose purpose is to obtain property, and the property obtained is used by private persons. Private plunder is the historical link between pirate and private purpose. Privatisation is a pirate that was widely licensed by the state for political purposes in the 16-18 th century. In order to distinguish privatised pirates from unlicensed pirates, "for private purposes" became one of the elements of piracy in the legislation, which then survived. Nowadays, pirates appear the tendency of "terrorism", and pirates begin to collude with terrorism, which is bound to produce the political nature of pirates. This goes against the traditional concept of piracy. Many defects and deficiencies in the constitutive elements of piracy for private purpose are gradually revealed. A number of international legal documents have begun to attempt to break through the "private purpose" element of the concept of piracy in the UN Convention on the Law of the Sea. I believe that the concept of piracy for private elements should be abolished. At the same time, a set of international laws specifically regulating piracy should also be established. Piracy is not an act of terrorism at sea, nor is it an act of violence at sea. The "private purpose" element of eliminating the concept of piracy is not to incorporate all acts of maritime violence into piracy, but to fill in legislative gaps. The law of piracy and terrorism is a more appropriate way to deal with. This paper is divided into four chapters. The first chapter introduces the main international law of piracy and the regulation of piracy. The second chapter introduces the concept, causes and development of Private elements in Piracy legislation, and introduces the historical link between Piracy and Private purpose. The third chapter introduces the defects and challenges of "private purpose", and discusses the shortcomings of "private purpose" in the fight against modern pirates. Chapter four discusses the problem of whether the private purpose of piracy is constituted and how to construct a new legal system. Finally, this paper holds that the system of legal concurrence between piracy and maritime terrorism should be established, and that countries should be given the discretion to deal with this kind of problems.
【學(xué)位授予單位】：中國政法大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2011
【分類號】：D997.9
本文編號：2428989
[Abstract]:Piracy can be divided into two categories: piracy in a broad sense and piracy in a narrow sense, which refers to pirates under the framework of the United Nations Convention on the Law of the Sea (UNCLOS), that is, pirates engaged in acts of looting at sea in order to satisfy "private purposes". In a broad sense, piracy refers to the use of violent means to rob other ships, aircraft or their belongings at sea, and the person or organization that commits the act. After World War II, large pirate groups appeared in some areas, marking the advent of the modern pirate era. Nowadays, there are many international organizations and laws regulating piracy. Among them, "for private purposes" is one of the constitutive elements of the concept of piracy in the United Nations Convention on the Law of the Sea. "for private purposes" refers to a member or organization which is not affiliated with a political organization and whose purpose is to obtain property, and the property obtained is used by private persons. Private plunder is the historical link between pirate and private purpose. Privatisation is a pirate that was widely licensed by the state for political purposes in the 16-18 th century. In order to distinguish privatised pirates from unlicensed pirates, "for private purposes" became one of the elements of piracy in the legislation, which then survived. Nowadays, pirates appear the tendency of "terrorism", and pirates begin to collude with terrorism, which is bound to produce the political nature of pirates. This goes against the traditional concept of piracy. Many defects and deficiencies in the constitutive elements of piracy for private purpose are gradually revealed. A number of international legal documents have begun to attempt to break through the "private purpose" element of the concept of piracy in the UN Convention on the Law of the Sea. I believe that the concept of piracy for private elements should be abolished. At the same time, a set of international laws specifically regulating piracy should also be established. Piracy is not an act of terrorism at sea, nor is it an act of violence at sea. The "private purpose" element of eliminating the concept of piracy is not to incorporate all acts of maritime violence into piracy, but to fill in legislative gaps. The law of piracy and terrorism is a more appropriate way to deal with. This paper is divided into four chapters. The first chapter introduces the main international law of piracy and the regulation of piracy. The second chapter introduces the concept, causes and development of Private elements in Piracy legislation, and introduces the historical link between Piracy and Private purpose. The third chapter introduces the defects and challenges of "private purpose", and discusses the shortcomings of "private purpose" in the fight against modern pirates. Chapter four discusses the problem of whether the private purpose of piracy is constituted and how to construct a new legal system. Finally, this paper holds that the system of legal concurrence between piracy and maritime terrorism should be established, and that countries should be given the discretion to deal with this kind of problems.
【學(xué)位授予單位】：中國政法大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2011
【分類號】：D997.9
【引證文獻(xiàn)】
相關(guān)碩士學(xué)位論文 前1條
1 葛娜娜;海盜贖金支付行為合法性研究[D];大連海事大學(xué);2012年
，本文編號：2428989
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