無單放貨舉證責任分配法律問題研究
發(fā)布時間：2018-08-12 18:02
【摘要】： 提單是用以證明海上貨物運輸合同和貨物已經(jīng)由承運人接收或裝船,以及承運人保證據(jù)以交付貨物的單證。承運人在卸貨港憑正本提單向托運人、收貨人交付所承運的貨物,不僅是海上貨物運輸長期以來形成的慣例,也是海商法明確的法定義務。承運人未憑正本提單而對貨物予以放行的行為構成無單放貨。 在海事審判實踐中,無單放貨糾紛是海上貨物運輸合同履行中最為典型的糾紛之一,也是最為常見的海商案件之一。在無單放貨糾紛中,各方當事人都需依法律規(guī)定提交全面、充分以及有效的利己證據(jù)來證明其主張事項的真實性,以最大限度地保護自己訴請“公力救濟”的合法權利。在這種訴訟過程中,提交證據(jù)以證明其主張事項之程序規(guī)范一一舉證責任制度,作為一項重要的訴訟制度早已成為一種基本的訴訟原則及司法實踐。然而,當前在我國司法實踐中存在著“重實體、輕程序”的現(xiàn)象,因而重新審視和強調(diào)“程序法”規(guī)范顯得尤為重要。有鑒于此,本文從提單的視角,對舉證責任分配的司法實踐進行分析探討,并提出完善對策和建議。 本文共分三個部分,共約兩萬字。 第一部分,分析案例,提出問題。筆者首先由案例入手分析了本案中的幾個焦點問題,然后提出問題:無單放貨舉證責任在當事人雙方如何配置才能體現(xiàn)公平正義的民事訴訟原則? 第二部分,探析無單放貨舉證責任分配適用路徑。該部分首先分析了舉證責任的雙重含義,即行為意義上的舉證責任、結果意義上的舉證責任。接著分析了目前舉證責任分配主要有的幾種學說。在此之后,筆者總結了當前無單放貨舉證責任分配上存在的兩種觀點并進行了評析,并提出無單放貨舉證分配應立足于均衡提單持有人和承運人之間的利益,體現(xiàn)公平正義的訴訟原則的觀點,以及無單放貨舉證分配的一般和特殊原則。最后,筆者總結提出了與無單放貨舉證責任相關的兩個法律問題:1.無單放貨糾紛性質(zhì)認定不統(tǒng)一,導致舉證責任配置不公平,2.無單放貨糾紛的大量書證由于缺乏形式上的證據(jù)力,不具有證明力。 第三部分,提出對策,解決問題。針對由案例引申出的相關問題,筆者總結了各方觀點,提出了自己的建議:1.法院根據(jù)無單放貨糾紛舉證責任分配原則劃分各方當事人的舉證責任。2.無單放貨糾紛應定性為違約。這一認定在平衡提單持有人和承運人之間合法權益上具有重要的實踐意義。3.無單放貨證據(jù),尤其是涉外證據(jù)效力認定所適用的制度規(guī)定過于籠統(tǒng),應根據(jù)立法原則、當事人意思自治原則、必要性原則等九項原則加以修改和完善。
[Abstract]:Bill of lading is used to prove that the contract of carriage of goods by sea and the goods have been received or loaded by the carrier, and the carrier guarantees the delivery of the goods. At the port of discharge, the carrier delivers the goods to the shipper and the consignee by original bill of lading, which is not only the custom formed for a long time in the carriage of goods by sea, but also the legal obligation of maritime law. The carrier's failure to release the goods on the basis of the original bill of lading constitutes the release of the goods without a bill of lading. In the practice of maritime trial, the dispute of delivery without bill of lading is one of the most typical disputes in the performance of the contract of carriage of goods by sea, and is also one of the most common cases of maritime merchants. In the dispute of delivery of goods without bill, all parties should submit comprehensive, sufficient and effective evidence of self-interest in accordance with the law to prove the authenticity of their claims, so as to protect their legitimate right to appeal for "public relief" to the maximum extent. In the process of this kind of litigation, the system of burden of proof, the procedural norm of submitting evidence to prove its claim, has long been a basic litigation principle and judicial practice as an important litigation system. However, there exists the phenomenon of "attaching importance to substance rather than procedure" in our country's judicial practice at present, so it is particularly important to re-examine and emphasize the norms of "procedural Law". In view of this, this paper analyzes the judicial practice of burden of proof distribution from the perspective of bill of lading, and puts forward some countermeasures and suggestions. This article is divided into three parts, a total of about 20,000 words. The first part, analyzes the case, raises the question. The author first analyzes several focal points in this case from the case, and then puts forward the question: how to allocate the burden of proof without bill of lading in both parties to reflect the principle of fair and just civil action? The second part analyzes the applicable path of the distribution of the burden of proof. This part first analyzes the double meaning of the burden of proof, that is, the burden of proof in the sense of behavior and the burden of proof in the sense of result. Then it analyzes several theories about the distribution of burden of proof. After that, the author summarizes the two points of view on the distribution of burden of proof without bill of lading, and puts forward that the distribution of proof of delivery without bill of lading should be based on balancing the interests between the holder of bill of lading and the carrier. The viewpoint of litigation principle of fairness and justice, and the general and special principle of distribution of proof without bill delivery. Finally, the author sums up two legal issues related to the burden of proof without bill of lading: 1. The nature of no bill of delivery dispute is not uniform, resulting in unfair allocation of the burden of proof. Due to the lack of formal evidence, a large number of documents without bill-delivery dispute have no proof. The third part, puts forward the countermeasure, solves the problem. In view of the related problems derived from the case, the author summarizes the views of all parties and puts forward his own suggestion: 1. The court divides the burden of proof of the parties according to the principle of distribution of the burden of proof in the undocumented delivery dispute. The dispute over the delivery of goods without documentary evidence should be qualified as breach of contract. This determination has important practical significance in balancing the legitimate rights and interests between the holder of bill of lading and the carrier. The provisions of the system applicable to the confirmation of the validity of the evidence concerning foreign affairs are too general and should be revised and perfected according to the principles of legislation, the principle of party autonomy, the principle of necessity and so on.
【學位授予單位】：西南政法大學
【學位級別】：碩士
【學位授予年份】：2008
【分類號】：D922.294
本文編號：2179862
[Abstract]:Bill of lading is used to prove that the contract of carriage of goods by sea and the goods have been received or loaded by the carrier, and the carrier guarantees the delivery of the goods. At the port of discharge, the carrier delivers the goods to the shipper and the consignee by original bill of lading, which is not only the custom formed for a long time in the carriage of goods by sea, but also the legal obligation of maritime law. The carrier's failure to release the goods on the basis of the original bill of lading constitutes the release of the goods without a bill of lading. In the practice of maritime trial, the dispute of delivery without bill of lading is one of the most typical disputes in the performance of the contract of carriage of goods by sea, and is also one of the most common cases of maritime merchants. In the dispute of delivery of goods without bill, all parties should submit comprehensive, sufficient and effective evidence of self-interest in accordance with the law to prove the authenticity of their claims, so as to protect their legitimate right to appeal for "public relief" to the maximum extent. In the process of this kind of litigation, the system of burden of proof, the procedural norm of submitting evidence to prove its claim, has long been a basic litigation principle and judicial practice as an important litigation system. However, there exists the phenomenon of "attaching importance to substance rather than procedure" in our country's judicial practice at present, so it is particularly important to re-examine and emphasize the norms of "procedural Law". In view of this, this paper analyzes the judicial practice of burden of proof distribution from the perspective of bill of lading, and puts forward some countermeasures and suggestions. This article is divided into three parts, a total of about 20,000 words. The first part, analyzes the case, raises the question. The author first analyzes several focal points in this case from the case, and then puts forward the question: how to allocate the burden of proof without bill of lading in both parties to reflect the principle of fair and just civil action? The second part analyzes the applicable path of the distribution of the burden of proof. This part first analyzes the double meaning of the burden of proof, that is, the burden of proof in the sense of behavior and the burden of proof in the sense of result. Then it analyzes several theories about the distribution of burden of proof. After that, the author summarizes the two points of view on the distribution of burden of proof without bill of lading, and puts forward that the distribution of proof of delivery without bill of lading should be based on balancing the interests between the holder of bill of lading and the carrier. The viewpoint of litigation principle of fairness and justice, and the general and special principle of distribution of proof without bill delivery. Finally, the author sums up two legal issues related to the burden of proof without bill of lading: 1. The nature of no bill of delivery dispute is not uniform, resulting in unfair allocation of the burden of proof. Due to the lack of formal evidence, a large number of documents without bill-delivery dispute have no proof. The third part, puts forward the countermeasure, solves the problem. In view of the related problems derived from the case, the author summarizes the views of all parties and puts forward his own suggestion: 1. The court divides the burden of proof of the parties according to the principle of distribution of the burden of proof in the undocumented delivery dispute. The dispute over the delivery of goods without documentary evidence should be qualified as breach of contract. This determination has important practical significance in balancing the legitimate rights and interests between the holder of bill of lading and the carrier. The provisions of the system applicable to the confirmation of the validity of the evidence concerning foreign affairs are too general and should be revised and perfected according to the principles of legislation, the principle of party autonomy, the principle of necessity and so on.
【學位授予單位】：西南政法大學
【學位級別】：碩士
【學位授予年份】：2008
【分類號】：D922.294
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