關于國際航空承運人對旅客損害賠償責任限額發(fā)展趨勢的研究
發(fā)布時間：2018-09-01 07:33
【摘要】： 在有著悠久歷史的海商法中,承運人責任限額是一個很重要的組成部分。誕生時間還不足百年的國際航空法在諸多方面借鑒了海商法的經驗,也包括承運人責任限額這個重要元素。自從1929年《華沙公約》生效以來,責任限額這個字眼便開始在國際航空運輸法中扮演著不可或缺的角色。這并非僅是對海商法的機械模仿,而有其產生的歷史原因、經濟原因、制度原因、內部原因、外部原因和根本原因。尤其是在《華沙公約》剛誕生的時代,飛行仍然是一項具有高度不確定性、危險性以及毫無疑問的高昂成本的運輸方式,責任限額的出現(xiàn)有著其必然性,《華沙公約》更為保護作為幼稚產業(yè)的航空承運人的利益而非旅客利益也是理所當然的。但是自從《華沙公約》作為第一個國際航空私法的公約產生后的幾十年來,關于承運人對旅客損害賠償責任限額高低存廢的爭議便不曾平息過。包括《華沙公約》在內的華沙體制文件對責任限額的規(guī)定都在不斷變化,這種復雜局面使得《華沙公約》在國際航空私法上的統(tǒng)一性不復存在。如今航空科學技術的高度發(fā)展,人類生活水平的不斷提高、人本意識的日益增強、《華沙公約》的不斷革新、各國家對責任限額制度的單邊行動的突破、《1999年蒙特利爾公約》的出臺,都反映出承運人對旅客損害賠償責任限額的存在已經不再是保護而更多是障礙,責任限額的取消已經在所難免�！�1999年蒙特利爾公約》對于旅客傷亡責任限額制度進行了大幅變更:首先,設立了一個關于旅客傷亡責任限制的雙梯度原則體制。在第一梯度下,航空承運人承擔嚴格責任,賠償限額為100000特別提款權;在第二梯度下,航空承運人承擔過錯推定責任,沒有最高限額的限制。其次,設立了一個“自動升降梯條款”,五年進行一次限額復審,使責任限額的數(shù)字可以根據(jù)通貨膨脹和其他經濟性質的變化而相應進行更新�！�1999年蒙特利爾公約》的生效,朝著無限額責任更近了一步,它積極吸收了華沙體制歷次改革中的進步成果,順應了當代國際航空運輸責任立法的發(fā)展趨勢,為國際航空運輸復歸到統(tǒng)一的責任規(guī)則體系,從而為穩(wěn)定國際航空運輸責任制度的有效運行提供了現(xiàn)實和可行的制度設計。我國借鑒《1999年蒙特利爾公約》的相關內容,制定了新的《國內航空運輸承運人賠償責任限額規(guī)定》,大幅度提高了國內航空運輸承運人的賠償責任限額,以適應新形勢。種種情況表明,“農夫補貼國王”這個產生于上世紀六十年代的反對高責任限額的說法已經搖搖欲墜,不堪一擊,承運人對旅客損害賠償責任限額的取消是大勢所趨。
[Abstract]:In the long history of maritime law, the carrier liability limit is a very important part. The international air law, which has been born for less than a hundred years, draws lessons from the experience of maritime law in many aspects, including the important element of carrier liability limit. Since the Warsaw Convention came into force in 1929, the term limitation has played an indispensable role in international air transport law. This is not only a mechanical imitation of maritime law, but also has its historical, economic, institutional, internal, external and fundamental reasons. Especially in the early days of the Warsaw Convention, flight is still a highly uncertain, dangerous and unquestionably costly mode of transport, The emergence of liability limits has its inevitability, and it is natural that the Warsaw Convention protects the interests of air carriers rather than passengers as a childish industry. However, since the Warsaw Convention came into being as the first convention on private international aviation law, the controversy about the limitation of carrier's liability for damages to passengers has not been settled. The provisions of the Warsaw institutional documents including the Warsaw Convention on liability limits are constantly changing. This complex situation makes the unity of the Warsaw Convention in the international aviation private law no longer exist. Today, with the development of aviation science and technology, the continuous improvement of human living standards, the increasing awareness of humanism, and the constant innovation of the Warsaw Convention, The breakthrough of unilateral actions of each country to the liability limit system and the introduction of the Montreal Convention in 1999 all reflect that the existence of the carrier's limit of liability for damages to passengers is no longer a protection but more an obstacle. It is inevitable to cancel the liability limit. The Montreal Convention of 1999 has greatly changed the limitation system of passenger casualty liability. Firstly, a two-gradient principle system on the limitation of passenger casualty liability has been established. Under the first gradient, the air carrier is strictly liable, with a limit of 100000 SDRs; in the second gradient, the carrier assumes the presumption of fault liability without the limitation of the maximum limit. Secondly, an "escalator clause" has been established, with a five-year quota review, so that the liability limit figures can be updated accordingly in the light of inflation and other changes in the economic nature. The Montreal Convention entered into force in 1999, It has actively absorbed the progressive achievements of the previous reforms in Warsaw's system, complied with the development trend of contemporary international air transport liability legislation, and returned international air transport to a unified liability rule system. Therefore, it provides a realistic and feasible system design for stabilizing the effective operation of international air transport liability system. Drawing on the relevant contents of the Montreal Convention of 1999, China has formulated a new limitation of liability for domestic air carriers, which has greatly increased the limit of liability of domestic air carriers in order to adapt to the new situation. Circumstances suggest that the "farmer subsidy to the king", an argument against high liability limits that emerged in the 1960s, is teetering and fragile, and the removal of the carrier's limits on passengers' liability for damages is a general trend.
【學位授予單位】：中國政法大學
【學位級別】：碩士
【學位授予年份】：2008
【分類號】：D993.4
本文編號：2216531
[Abstract]:In the long history of maritime law, the carrier liability limit is a very important part. The international air law, which has been born for less than a hundred years, draws lessons from the experience of maritime law in many aspects, including the important element of carrier liability limit. Since the Warsaw Convention came into force in 1929, the term limitation has played an indispensable role in international air transport law. This is not only a mechanical imitation of maritime law, but also has its historical, economic, institutional, internal, external and fundamental reasons. Especially in the early days of the Warsaw Convention, flight is still a highly uncertain, dangerous and unquestionably costly mode of transport, The emergence of liability limits has its inevitability, and it is natural that the Warsaw Convention protects the interests of air carriers rather than passengers as a childish industry. However, since the Warsaw Convention came into being as the first convention on private international aviation law, the controversy about the limitation of carrier's liability for damages to passengers has not been settled. The provisions of the Warsaw institutional documents including the Warsaw Convention on liability limits are constantly changing. This complex situation makes the unity of the Warsaw Convention in the international aviation private law no longer exist. Today, with the development of aviation science and technology, the continuous improvement of human living standards, the increasing awareness of humanism, and the constant innovation of the Warsaw Convention, The breakthrough of unilateral actions of each country to the liability limit system and the introduction of the Montreal Convention in 1999 all reflect that the existence of the carrier's limit of liability for damages to passengers is no longer a protection but more an obstacle. It is inevitable to cancel the liability limit. The Montreal Convention of 1999 has greatly changed the limitation system of passenger casualty liability. Firstly, a two-gradient principle system on the limitation of passenger casualty liability has been established. Under the first gradient, the air carrier is strictly liable, with a limit of 100000 SDRs; in the second gradient, the carrier assumes the presumption of fault liability without the limitation of the maximum limit. Secondly, an "escalator clause" has been established, with a five-year quota review, so that the liability limit figures can be updated accordingly in the light of inflation and other changes in the economic nature. The Montreal Convention entered into force in 1999, It has actively absorbed the progressive achievements of the previous reforms in Warsaw's system, complied with the development trend of contemporary international air transport liability legislation, and returned international air transport to a unified liability rule system. Therefore, it provides a realistic and feasible system design for stabilizing the effective operation of international air transport liability system. Drawing on the relevant contents of the Montreal Convention of 1999, China has formulated a new limitation of liability for domestic air carriers, which has greatly increased the limit of liability of domestic air carriers in order to adapt to the new situation. Circumstances suggest that the "farmer subsidy to the king", an argument against high liability limits that emerged in the 1960s, is teetering and fragile, and the removal of the carrier's limits on passengers' liability for damages is a general trend.
【學位授予單位】：中國政法大學
【學位級別】：碩士
【學位授予年份】：2008
【分類號】：D993.4
【參考文獻】
相關期刊論文 前1條
1 任秋娟;國際航空客運旅客傷亡承運人責任制度及對我國的影響[J];山東理工大學學報(社會科學版);2005年04期
，本文編號：2216531
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