未保價快件限額賠償條款有效性研究
發(fā)布時間：2018-10-25 15:32
【摘要】：近年來,我國快遞行業(yè)因為其便捷高效的服務(wù)和廉價的收費,擁有了廣大的消費群體,快遞企業(yè)和快件數(shù)量激增。快遞服務(wù)確實極大地方便了我們的日常生活,但快遞糾紛也在不斷增加,特別是未保價快件損害引發(fā)的賠償問題�？爝f企業(yè)以是否保價為區(qū)別,在快遞服務(wù)合同中擬定了不同的賠償條款。保價快件按照聲明價值的一定比例另外支付保價費,當(dāng)快件毀損丟失時,快遞企業(yè)按照聲明價值賠償快件損失,即為保價快件賠償條款。未保價快件只需要繳納快遞費,當(dāng)快件毀損丟失時,快遞企業(yè)在最高賠償限額以內(nèi)賠償快件損失,我們稱之為未保價快件限額賠償條款。生活中,條款中的賠償限額常常和快件實際損失存在差距,消費者無法接受,引發(fā)大量糾紛,而消費者最終能獲得的賠償金額又和限額賠償條款是否有效密切相關(guān),因此,對未保價快件限額賠償條款有效性的研究非常有必要。未保價快件限額賠償條款是否有效,未保價快件究竟如何賠償,《郵政法》以及快遞行業(yè)相關(guān)的各種規(guī)范、文件沒有進行明確規(guī)定,理論界和實務(wù)界也都存在爭議。我們不能籠統(tǒng)地否定未保價快件限額賠償條款的效力,認(rèn)可其效力是具有合理性的,符合合同自由原則,并且限制承運人賠償責(zé)任是國內(nèi)外運輸行業(yè)的慣例,雖然條款有效可能會產(chǎn)生一些負(fù)面影響,但積極影響更難以抹滅,尤其在當(dāng)前,我國快遞行業(yè)處于起步階段,快件損害頻發(fā),大量的中小型快遞企業(yè)抗風(fēng)險能力差,需要通過限制賠償責(zé)任來確保行業(yè)長久發(fā)展。兩害相權(quán)取其輕,我們應(yīng)該在滿足一定條件時認(rèn)可未保價快件限額賠償條款的效力。鑒于未保價快件限額賠償條款具有格式條款和免責(zé)條款的雙重性質(zhì),根據(jù)快遞行業(yè)的實際情況,該條款有效的構(gòu)成要件應(yīng)該表現(xiàn)為以下三點:1、條款必須符合公平原則;2、履行提請注意和說明義務(wù);3、排除故意或者重大過失行為。只有同時滿足以上三個條件,未保價快件限額賠償條款才能有效。
[Abstract]:In recent years, because of its convenient and efficient services and cheap charges, express delivery industry has a large number of consumer groups, express delivery enterprises and express products. Express service really greatly facilitates our daily life, but express disputes are also increasing, especially the damages caused by uninsured courier. Express delivery companies to price for the difference, express service contract in the formulation of different terms of compensation. The courier shall pay the premium according to a certain proportion of the declared value. When the express is damaged and lost, the express delivery enterprise shall compensate the express for the loss of the express according to the declared value, that is, the clause of indemnity for the insured courier. Uninsured express only needs to pay express delivery fee, when the express damage is lost, express delivery enterprises compensate for the loss of express within the maximum compensation limit, we call it the uninsured express limit compensation clause. In life, there is often a gap between the amount of compensation in the clause and the actual loss of the courier, which is unacceptable to consumers and leads to a large number of disputes, and the amount of compensation that consumers can eventually receive is closely related to whether the capped compensation clause is effective or not. It is necessary to study the validity of the uninsured express limit compensation clause. Whether the limited compensation clause of uninsured courier is effective, how to compensate uninsured courier, the postal law and all kinds of related norms of express delivery industry are not clearly stipulated in the documents, and there are also disputes between the theoretical and practical circles. We cannot deny the validity of the uninsured express limit compensation clause in general terms, and accept that its validity is reasonable, in conformity with the principle of freedom of contract, and that limiting the carrier's liability is the practice of the transportation industry at home and abroad. Although the effective terms may have some negative effects, but the positive effects are even more difficult to erase, especially at present, the express delivery industry in China is in its infancy, express mail damage occurs frequently, and a large number of small and medium-sized express delivery enterprises have poor ability to resist risks. There is a need to ensure the long-term growth of the industry by limiting liability. The right of two damages is light, we should approve the effect of the limit compensation clause of uninsured courier when meeting certain conditions. In view of the fact that the uninsured express limit compensation clause is of the dual nature of the format clause and the exemption clause, according to the actual situation in the express delivery industry, The effective elements of this clause should be shown as follows: 1, the clause must conform to the principle of fairness; 2, fulfill the obligation to draw attention and explanation; 3, exclude intentional or gross negligence. Only meet the above three conditions at the same time, uninsured express limit compensation clause can be effective.
【學(xué)位授予單位】：安徽財經(jīng)大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2015
【分類號】：D922.296
本文編號：2294112
[Abstract]:In recent years, because of its convenient and efficient services and cheap charges, express delivery industry has a large number of consumer groups, express delivery enterprises and express products. Express service really greatly facilitates our daily life, but express disputes are also increasing, especially the damages caused by uninsured courier. Express delivery companies to price for the difference, express service contract in the formulation of different terms of compensation. The courier shall pay the premium according to a certain proportion of the declared value. When the express is damaged and lost, the express delivery enterprise shall compensate the express for the loss of the express according to the declared value, that is, the clause of indemnity for the insured courier. Uninsured express only needs to pay express delivery fee, when the express damage is lost, express delivery enterprises compensate for the loss of express within the maximum compensation limit, we call it the uninsured express limit compensation clause. In life, there is often a gap between the amount of compensation in the clause and the actual loss of the courier, which is unacceptable to consumers and leads to a large number of disputes, and the amount of compensation that consumers can eventually receive is closely related to whether the capped compensation clause is effective or not. It is necessary to study the validity of the uninsured express limit compensation clause. Whether the limited compensation clause of uninsured courier is effective, how to compensate uninsured courier, the postal law and all kinds of related norms of express delivery industry are not clearly stipulated in the documents, and there are also disputes between the theoretical and practical circles. We cannot deny the validity of the uninsured express limit compensation clause in general terms, and accept that its validity is reasonable, in conformity with the principle of freedom of contract, and that limiting the carrier's liability is the practice of the transportation industry at home and abroad. Although the effective terms may have some negative effects, but the positive effects are even more difficult to erase, especially at present, the express delivery industry in China is in its infancy, express mail damage occurs frequently, and a large number of small and medium-sized express delivery enterprises have poor ability to resist risks. There is a need to ensure the long-term growth of the industry by limiting liability. The right of two damages is light, we should approve the effect of the limit compensation clause of uninsured courier when meeting certain conditions. In view of the fact that the uninsured express limit compensation clause is of the dual nature of the format clause and the exemption clause, according to the actual situation in the express delivery industry, The effective elements of this clause should be shown as follows: 1, the clause must conform to the principle of fairness; 2, fulfill the obligation to draw attention and explanation; 3, exclude intentional or gross negligence. Only meet the above three conditions at the same time, uninsured express limit compensation clause can be effective.
【學(xué)位授予單位】：安徽財經(jīng)大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2015
【分類號】：D922.296
【參考文獻】
相關(guān)期刊論文 前1條
1 王利明;對《合同法》格式條款規(guī)定的評析[J];政法論壇;1999年06期
，本文編號：2294112
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