運輸方式下買賣合同的風(fēng)險負(fù)擔(dān)研究
發(fā)布時間：2018-09-10 07:30
【摘要】：隨著全球化經(jīng)濟的迅速發(fā)展，國與國之間的經(jīng)濟交往日益密切。中國從改革開放到加入世貿(mào)組織以來，逐漸跟隨世界經(jīng)濟的潮流并漸漸的與世界接軌，經(jīng)濟指標(biāo)逐年上升，國內(nèi)、國外兩個市場均呈現(xiàn)出一片欣欣向榮的繁榮景象。在這樣的時代背景之下，貨物買賣合同風(fēng)險負(fù)擔(dān)問題作為合同法的重要內(nèi)容之一，不僅成為雙方當(dāng)事人關(guān)注的焦點，同時也成為世界各國買賣法研究的重點。雖然標(biāo)的物的風(fēng)險負(fù)擔(dān)以交付主義為一般原則，但現(xiàn)實生活復(fù)雜多變，不深入探究交付主義的內(nèi)涵就無法很好的解決實踐中面臨的各種新問題新挑戰(zhàn)。尤其是涉及運輸?shù)馁I賣合同的風(fēng)險負(fù)擔(dān)問題，已有的風(fēng)險負(fù)擔(dān)規(guī)則在一些特殊情形之下遇到一定的應(yīng)用障礙，此類合同的特殊性決定了在分配這種情況下的風(fēng)險時必須綜合考慮幾類因素。 本文從現(xiàn)實生活中可能遇到的難點入手，提出幾種在現(xiàn)有風(fēng)險負(fù)擔(dān)規(guī)則不能完美解決的特殊情境，以明晰運輸方式下買賣合同的風(fēng)險負(fù)擔(dān)研究有寫作的必要，隨后仔細闡述運輸方式下買賣合同的特殊性究竟是什么，并且明確了這種特殊性之后在風(fēng)險分配上都應(yīng)當(dāng)更加注重考慮哪幾類因素。本文正文共分為五個部分先后進行闡述論證。 第一部分為問題的提出，首先提出現(xiàn)實生活中可能出現(xiàn)的三個大方向的問題，第一是交付地點變更的問題，出賣人甲和買受人乙簽訂了涉及運輸?shù)呢浳镔I賣合同，并且在合同中明確約定了交付地點，然而，隨后買受人乙通知出賣人甲將貨物運送至合同約定的履行地點以外的其他地點，此時這批貨物的風(fēng)險應(yīng)從何時開始轉(zhuǎn)移。第二是出賣人與第一承運人交付銜接問題，，何時才能算作交付的完成。第三是在途貨物買賣問題，合同成立時間如何確定以及在有保險單的情況下如何判定風(fēng)險的問題。 第二部分為對運輸方式下買賣合同中風(fēng)險的因素復(fù)雜性討論，其涉及的主體比一般買賣合同要多，并且往往都要涉及到標(biāo)的物的特定化問題，其運輸方式也有多種多樣，在漫長的運輸途中也可能遭遇到更多種類的風(fēng)險。 第三部分為對運輸方式下買賣合同中風(fēng)險的環(huán)節(jié)復(fù)雜性討論，在交易主體多方的情況下交易環(huán)節(jié)勢必變得更加復(fù)雜，涉及提單等問題。 第四部分為結(jié)論，總結(jié)前文三個部分對于運輸方式下買賣合同中存在的各種特殊性，以及存在的問題，提出結(jié)論。對于風(fēng)險的規(guī)定不能用法條進行完全的規(guī)定，而是必須在實際案例中根據(jù)相關(guān)的幾個因素綜合判斷。
[Abstract]:With the rapid development of global economy, economic exchanges between countries are becoming closer and closer. Since China's reform and opening up to the World Trade Organization (WTO), China has gradually followed the trend of the world economy and gradually connected with the world. The economic indicators have been rising year by year, and both domestic and foreign markets have shown a prosperous scene. Under this background, as one of the important contents of contract law, the issue of the risk burden of the contract of sale of goods is not only the focus of the parties concerned, but also the focal point of the study of the law of sale of goods all over the world. Although the risk burden of the subject matter is based on the general principle of delivering doctrine, the real life is complex and changeable, so it is impossible to solve all kinds of new problems and new challenges in practice without further exploring the connotation of delivery doctrine. In particular, with regard to the risk burden of the contract of sale and purchase involving transport, the existing risk burden rules have encountered certain obstacles to their application in some special circumstances. The particularity of such contracts determines that a number of factors must be taken into account in the allocation of risks in such cases. Starting from the difficulties that may be encountered in real life, this paper puts forward several special situations in which the existing rules of risk burden can not be solved perfectly. It is necessary to write about the research on the risk burden of sale and purchase contract under the clear mode of transportation. Then it explains carefully what the particularity of the contract of sale and purchase under the mode of transportation is, and clarifies what kinds of factors should be paid more attention to in the risk distribution after this particularity. The text of this paper is divided into five parts. The first part is the question, first of all, the problem of three major directions that may appear in real life. The first is the change of the place of delivery. Seller A and buyer B have signed a contract for the sale of goods involving transportation. And the place of delivery is expressly specified in the contract, however, buyer B then informs seller A to ship the goods to a place other than the place of performance specified in the contract, at which time the risk of the goods should begin to be transferred. The second is the connection between the seller and the first carrier, when the delivery can be counted as the completion of delivery. The third is the sale of goods in transit, how to determine the time of formation of the contract and how to determine the risk in the case of insurance policy. The second part discusses the complexity of the risk factors in the contract of sale and purchase under the mode of transport, which involves more subjects than the general contract of sale, and often involves the question of the specificity of the subject-matter, and its modes of transportation are also various. There may also be more types of risk in the long transit. The third part is to discuss the complexity of the risk in the contract of sale and purchase under the mode of transportation, which is bound to become more complicated in the case of multi-party trading, involving the bill of lading and other issues. The fourth part is the conclusion, summarizes the above three parts to the transportation mode under the sale contract existence each kind of particularity, as well as the existence question, puts forward the conclusion. The regulation of risk should not be completely regulated by law, but must be judged synthetically according to several relevant factors in actual cases.
【學(xué)位授予單位】：西南政法大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2013
【分類號】：D923.6
本文編號：2233786
[Abstract]:With the rapid development of global economy, economic exchanges between countries are becoming closer and closer. Since China's reform and opening up to the World Trade Organization (WTO), China has gradually followed the trend of the world economy and gradually connected with the world. The economic indicators have been rising year by year, and both domestic and foreign markets have shown a prosperous scene. Under this background, as one of the important contents of contract law, the issue of the risk burden of the contract of sale of goods is not only the focus of the parties concerned, but also the focal point of the study of the law of sale of goods all over the world. Although the risk burden of the subject matter is based on the general principle of delivering doctrine, the real life is complex and changeable, so it is impossible to solve all kinds of new problems and new challenges in practice without further exploring the connotation of delivery doctrine. In particular, with regard to the risk burden of the contract of sale and purchase involving transport, the existing risk burden rules have encountered certain obstacles to their application in some special circumstances. The particularity of such contracts determines that a number of factors must be taken into account in the allocation of risks in such cases. Starting from the difficulties that may be encountered in real life, this paper puts forward several special situations in which the existing rules of risk burden can not be solved perfectly. It is necessary to write about the research on the risk burden of sale and purchase contract under the clear mode of transportation. Then it explains carefully what the particularity of the contract of sale and purchase under the mode of transportation is, and clarifies what kinds of factors should be paid more attention to in the risk distribution after this particularity. The text of this paper is divided into five parts. The first part is the question, first of all, the problem of three major directions that may appear in real life. The first is the change of the place of delivery. Seller A and buyer B have signed a contract for the sale of goods involving transportation. And the place of delivery is expressly specified in the contract, however, buyer B then informs seller A to ship the goods to a place other than the place of performance specified in the contract, at which time the risk of the goods should begin to be transferred. The second is the connection between the seller and the first carrier, when the delivery can be counted as the completion of delivery. The third is the sale of goods in transit, how to determine the time of formation of the contract and how to determine the risk in the case of insurance policy. The second part discusses the complexity of the risk factors in the contract of sale and purchase under the mode of transport, which involves more subjects than the general contract of sale, and often involves the question of the specificity of the subject-matter, and its modes of transportation are also various. There may also be more types of risk in the long transit. The third part is to discuss the complexity of the risk in the contract of sale and purchase under the mode of transportation, which is bound to become more complicated in the case of multi-party trading, involving the bill of lading and other issues. The fourth part is the conclusion, summarizes the above three parts to the transportation mode under the sale contract existence each kind of particularity, as well as the existence question, puts forward the conclusion. The regulation of risk should not be completely regulated by law, but must be judged synthetically according to several relevant factors in actual cases.
【學(xué)位授予單位】：西南政法大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2013
【分類號】：D923.6
【參考文獻】
相關(guān)期刊論文 前2條
1 趙家儀,陳華庭;我國買賣合同中的“交付”與“風(fēng)險轉(zhuǎn)移”[J];法商研究;2003年02期
2 黃忠;;關(guān)于非典型交易中的風(fēng)險負(fù)擔(dān)原則[J];理論探索;2008年03期
本文編號：2233786
本文鏈接：http://sikaile.net/falvlunwen/hetongqiyue/2233786.html
