海上保險利益與風險負擔法律問題研究
發(fā)布時間：2018-08-14 11:51
【摘要】：保險公司賠付可能性的大小以及保險合同的效力均取決于保險利益的有無,而海上保險利益作為其中一大特殊類別,不同于傳統(tǒng)意義上的可保利益,與買賣合同的重要基礎風險負擔制度相關聯(lián),當事人通過訂立海上保險合同以解決跨國貨物買賣中貨物毀損滅失的救濟問題,二者共同引導海上保險業(yè)的發(fā)展。所以研究國際買賣合同項下海上保險利益的歸屬和風險負擔的法律問題不僅有利于買賣雙方正確投保以保障自身權益挽救損失,同時對于在保險理賠糾紛時正確適用保險利益原則及完善相關立法有重要的借鑒價值。文章第一部分在保險利益原則的框架下提出海上保險利益的概念,并結合風險負擔制度的含義、法律后果等基礎理論,深入探究海上保險利益與風險負擔二者之間的關系,得出結論海上保險利益與風險負擔在認定上應遵循“實質(zhì)危險負擔說”之規(guī)則。第二部分首先通過不同案例提出在FOB/CFR、CIF合同項下風險轉(zhuǎn)移之前買方海上保險利益保護不全面的問題,然后在案例分析的基礎上討論買方在此種情形下是否具備海上保險利益這一前提。其次結合目前世界各國海上保險法實務中的解決方案,以FOB、CIF無論滅失與否條款和裝運前條款為例,考量該類條款的缺陷所在,具體到CIF買賣中討論保險合同轉(zhuǎn)讓的合理性依據(jù)。文章第三部分重點討論在不同違約情形發(fā)生時海上保險利益于風險負擔的相互影響相互制約。從風險負擔一般規(guī)定著手,比對《聯(lián)合國貨物銷售合同公約》、以及英國《1906年海上保險法》、《貨物買賣法》中的不同規(guī)定,分析一方違約時風險轉(zhuǎn)移對于海上保險利益適用的限制,橫向縱向比對海上保險利益的界定與風險負擔制度之間的內(nèi)在關聯(lián),并對以上法律框架下海上保險利益的救濟途徑加以研究。文章第四部分討論了中國目前立法的弊端并對未來相關立法的完善提出了建議,主要包括以“經(jīng)濟利害關系”界定海上保險利益的屬性,明確海上保險利益的轉(zhuǎn)移標準,構建海上保險利益的新格局,認定已付款買方的保險當事人地位等,從而將風險負擔與海上保險利益銜接起來以維護海上保險合同損失分擔的目的。本文不囿于保險法或者國際經(jīng)濟法單一的角度考量問題,通過中外理論的比較、案例分析等路徑,提煉出他國可借鑒的法律規(guī)定,結合實踐經(jīng)驗對健全我國《海商法》的相關規(guī)定提出了自己的觀點和見解。
[Abstract]:The possibility of indemnity and the validity of insurance contract all depend on the existence or not of the insurance interest. As one of the special categories, the marine insurance interest is different from the insurable interest in the traditional sense. In connection with the important basic risk burden system of the contract of sale and purchase, the parties concerned conclude a contract of marine insurance to solve the problem of relief of the damage and loss of goods in the transnational sale and purchase of goods, both of which guide the development of the marine insurance industry. Therefore, studying the attribution of marine insurance interests and the burden of risks under international contracts of sale is not only conducive to the correct insurance of both parties in order to protect their own rights and interests to save losses, At the same time, it has important reference value for applying the principle of insurance interest and perfecting relevant legislation. The first part of the article puts forward the concept of marine insurance interest under the framework of insurance interest principle, and combines the basic theory of risk burden system and legal consequences to explore the relationship between marine insurance interest and risk burden. The conclusion is that the interest and risk burden of marine insurance should follow the rule of "substantial risk burden". The second part firstly puts forward the problem that the buyer's marine insurance interests are not fully protected before the risk transfer under FOB / CFRN CIF contract through different cases. Then, on the basis of case study, the premise of whether the buyer has marine insurance interest in this case is discussed. Secondly, combined with the solutions in the practice of marine insurance law of various countries in the world, taking the loss or loss clause and pre-shipment clause as examples, the defects of this kind of clause are considered, and the reasonable basis for the transfer of insurance contract is discussed in the course of CIF purchase and sale. The third part focuses on the mutual influence of marine insurance interests on the risk burden in different breach of contract. Starting from the general provisions on the burden of risk and comparing the different provisions of the United Nations Convention on contracts for the Sale of goods and the United Kingdom's Maritime Insurance Law of 1906 and the Law on the Sale of goods, this paper analyzes the limitations of the transfer of risks to the interests of marine insurance in case of breach of contract by one party. The relationship between the definition of marine insurance benefits and the risk burden system is studied in this paper, and the remedies of marine insurance benefits under the above legal framework are also studied. The fourth part of the article discusses the drawbacks of China's current legislation and puts forward some suggestions for the perfection of relevant legislation in the future, mainly including defining the attributes of marine insurance interests by "economic interests", and clarifying the criteria for the transfer of marine insurance interests. In order to maintain the purpose of loss sharing in marine insurance contract, a new pattern of marine insurance interests is constructed, and the position of the paid buyer is recognized, so as to link the risk burden with the interests of marine insurance. This article is not confined to the insurance law or the international economic law single angle consideration question, through the Chinese and foreign theory comparison, the case analysis and so on path, refines the other countries may draw lessons from the law stipulation, Combined with practical experience, the author puts forward his own views and opinions on perfecting the relevant regulations of Maritime Law of our country.
【學位授予單位】：遼寧大學
【學位級別】：碩士
【學位授予年份】：2017
【分類號】：D922.284
本文編號：2182773
[Abstract]:The possibility of indemnity and the validity of insurance contract all depend on the existence or not of the insurance interest. As one of the special categories, the marine insurance interest is different from the insurable interest in the traditional sense. In connection with the important basic risk burden system of the contract of sale and purchase, the parties concerned conclude a contract of marine insurance to solve the problem of relief of the damage and loss of goods in the transnational sale and purchase of goods, both of which guide the development of the marine insurance industry. Therefore, studying the attribution of marine insurance interests and the burden of risks under international contracts of sale is not only conducive to the correct insurance of both parties in order to protect their own rights and interests to save losses, At the same time, it has important reference value for applying the principle of insurance interest and perfecting relevant legislation. The first part of the article puts forward the concept of marine insurance interest under the framework of insurance interest principle, and combines the basic theory of risk burden system and legal consequences to explore the relationship between marine insurance interest and risk burden. The conclusion is that the interest and risk burden of marine insurance should follow the rule of "substantial risk burden". The second part firstly puts forward the problem that the buyer's marine insurance interests are not fully protected before the risk transfer under FOB / CFRN CIF contract through different cases. Then, on the basis of case study, the premise of whether the buyer has marine insurance interest in this case is discussed. Secondly, combined with the solutions in the practice of marine insurance law of various countries in the world, taking the loss or loss clause and pre-shipment clause as examples, the defects of this kind of clause are considered, and the reasonable basis for the transfer of insurance contract is discussed in the course of CIF purchase and sale. The third part focuses on the mutual influence of marine insurance interests on the risk burden in different breach of contract. Starting from the general provisions on the burden of risk and comparing the different provisions of the United Nations Convention on contracts for the Sale of goods and the United Kingdom's Maritime Insurance Law of 1906 and the Law on the Sale of goods, this paper analyzes the limitations of the transfer of risks to the interests of marine insurance in case of breach of contract by one party. The relationship between the definition of marine insurance benefits and the risk burden system is studied in this paper, and the remedies of marine insurance benefits under the above legal framework are also studied. The fourth part of the article discusses the drawbacks of China's current legislation and puts forward some suggestions for the perfection of relevant legislation in the future, mainly including defining the attributes of marine insurance interests by "economic interests", and clarifying the criteria for the transfer of marine insurance interests. In order to maintain the purpose of loss sharing in marine insurance contract, a new pattern of marine insurance interests is constructed, and the position of the paid buyer is recognized, so as to link the risk burden with the interests of marine insurance. This article is not confined to the insurance law or the international economic law single angle consideration question, through the Chinese and foreign theory comparison, the case analysis and so on path, refines the other countries may draw lessons from the law stipulation, Combined with practical experience, the author puts forward his own views and opinions on perfecting the relevant regulations of Maritime Law of our country.
【學位授予單位】：遼寧大學
【學位級別】：碩士
【學位授予年份】：2017
【分類號】：D922.284
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