論合同成立理論在海商合同中的應用
發(fā)布時間：2018-10-08 08:44
【摘要】： 本文根據(jù)《海商法》、《新合同法》及其他有關海商合同的法律法規(guī)，結合中國海商合同的訂約實踐，對合同成立的一般理論加以系統(tǒng)研究，，并在此基礎上，對各類海商合同的成立問題進行具體分析。 本文共分七章。 第一章從訂約當事人、合同成立的標準、合同成立的時間、地點、合同成立的證據(jù)、以及合同的成立與有效的關系六方面入手，系統(tǒng)地討論了合同成立的一般原理。其中，重點研究了合同成立的標準(當事人對合同主要條款協(xié)商一致)、書面形式對合同成立的影響(它不是合同成立的要件)以及對“要約是希望和他人訂立合同的意思表示”的判定(應對要約本身而非要約人內心真實想法加以研究)三個問題，為以后各章的研究打下基礎。 第二章簡單地介紹了海商合同的概念、分類和海商合同的法律適用問題。 第三章是關于海上貨物運輸合同的成立問題。包括六節(jié)內容，即海上貨物運輸合同概述、班輪運輸合同、航次租船合同、水路貨物運輸合同、多式聯(lián)運合同和包運合同。在本章中，筆者對船期表的性質(視其所附之條件來判定)和水路貨物運輸合同成立的時間(承諾生效時)以及包運合同的必備條款(運量、航次數(shù)、運輸時段)三個問題提出了自己的看法。本章是本文的重點。 第四章是海上旅客運輸合同的成立。筆者對客票的簽發(fā)與海上旅客運輸合同的成立之間的關系(合同并非在客票簽發(fā)時成立)進行了重點探討。 第五章討論了租船合同的成立。包括概述、定期租船合同、光船租賃合同和拖航合同四節(jié)內容。筆者對登記程序在光船租賃合同中的地位(不影響合同的成立)加以研究 第六章為救助合同成立問題的研究。筆者對救助合同的訂約當事人作了重點研究，尤其是對船長的貨方的緊急代理人身份(視情況而定)進行重點分析。 最后一章，筆者對海上保險合同的成立進行了探討。 除上述內容外，筆者還對現(xiàn)行的法律法規(guī)的缺陷加以研究，并提出了一些立法建議，(如對貨代的管理問題)以供參考。
[Abstract]:According to the Maritime Law, the New contract Law and other laws and regulations concerning the maritime contracts, this paper systematically studies the general theory of the formation of the contracts according to the practice of the contracting of the Chinese maritime contracts, and on this basis, the author makes a systematic study on the general theory of the formation of the contracts, and on this basis, The establishment of various types of maritime contracts for specific analysis. This paper is divided into seven chapters. The first chapter discusses the general principle of contract formation systematically from six aspects: contracting parties, the standard of contract formation, the time and place of contract formation, the evidence of contract formation, and the relationship between contract formation and validity. Of which, It focuses on the criteria for the formation of the contract (the parties agree on the main terms of the contract), the effect of the written form on the formation of the contract (it is not an essential element of the formation of the contract) and the meaning of "the offer is the wish to enter into a contract with another person". There are three issues in the determination of the offer (the offer itself, rather than the true mind of the offeror), To lay a foundation for the later chapters of the study. The second chapter briefly introduces the concept, classification and legal application of maritime contracts. The third chapter is about the establishment of the contract of carriage of goods by sea. It includes six sections, I. e., an overview of the contract for the carriage of goods by sea, a contract for liner transportation, a charter party for voyages, a contract for the carriage of goods by water, a contract for multimodal transport and a contract for the carriage of goods by parcel. In this chapter, the author discusses the nature of the ship schedule (according to the attached conditions), the time of formation of the contract for the carriage of goods by water (when the commitment becomes effective) and the necessary clauses of the contract of package shipping (quantity of shipment, number of voyages, etc.) Three questions put forward their own views. This chapter is the focus of this paper. The fourth chapter is the establishment of the contract of carriage of passengers by sea. This paper mainly discusses the relationship between the issuance of ticket and the establishment of the contract of carriage of passengers by sea (the contract is not established when the ticket is issued). Chapter five discusses the establishment of charter party. Includes an overview, term charter, bareboat charter and towing contract four sections. The author makes a study on the status of registration procedure in bareboat charter contract (not affecting the establishment of the contract). The sixth chapter is the research on the establishment of salvage contract. The author focuses on the research of the contracting parties to the salvage contract, especially on the emergency agent identity of the shipmaster's consignor (as the case may be). In the last chapter, the author discusses the establishment of marine insurance contract. In addition to the above contents, the author also studies the defects of the existing laws and regulations, and puts forward some legislative suggestions (such as the management of freight forwarders) for reference.
【學位授予單位】：上海海運學院
【學位級別】：碩士
【學位授予年份】：2001
【分類號】：D922.294
本文編號：2256142
[Abstract]:According to the Maritime Law, the New contract Law and other laws and regulations concerning the maritime contracts, this paper systematically studies the general theory of the formation of the contracts according to the practice of the contracting of the Chinese maritime contracts, and on this basis, the author makes a systematic study on the general theory of the formation of the contracts, and on this basis, The establishment of various types of maritime contracts for specific analysis. This paper is divided into seven chapters. The first chapter discusses the general principle of contract formation systematically from six aspects: contracting parties, the standard of contract formation, the time and place of contract formation, the evidence of contract formation, and the relationship between contract formation and validity. Of which, It focuses on the criteria for the formation of the contract (the parties agree on the main terms of the contract), the effect of the written form on the formation of the contract (it is not an essential element of the formation of the contract) and the meaning of "the offer is the wish to enter into a contract with another person". There are three issues in the determination of the offer (the offer itself, rather than the true mind of the offeror), To lay a foundation for the later chapters of the study. The second chapter briefly introduces the concept, classification and legal application of maritime contracts. The third chapter is about the establishment of the contract of carriage of goods by sea. It includes six sections, I. e., an overview of the contract for the carriage of goods by sea, a contract for liner transportation, a charter party for voyages, a contract for the carriage of goods by water, a contract for multimodal transport and a contract for the carriage of goods by parcel. In this chapter, the author discusses the nature of the ship schedule (according to the attached conditions), the time of formation of the contract for the carriage of goods by water (when the commitment becomes effective) and the necessary clauses of the contract of package shipping (quantity of shipment, number of voyages, etc.) Three questions put forward their own views. This chapter is the focus of this paper. The fourth chapter is the establishment of the contract of carriage of passengers by sea. This paper mainly discusses the relationship between the issuance of ticket and the establishment of the contract of carriage of passengers by sea (the contract is not established when the ticket is issued). Chapter five discusses the establishment of charter party. Includes an overview, term charter, bareboat charter and towing contract four sections. The author makes a study on the status of registration procedure in bareboat charter contract (not affecting the establishment of the contract). The sixth chapter is the research on the establishment of salvage contract. The author focuses on the research of the contracting parties to the salvage contract, especially on the emergency agent identity of the shipmaster's consignor (as the case may be). In the last chapter, the author discusses the establishment of marine insurance contract. In addition to the above contents, the author also studies the defects of the existing laws and regulations, and puts forward some legislative suggestions (such as the management of freight forwarders) for reference.
【學位授予單位】：上海海運學院
【學位級別】：碩士
【學位授予年份】：2001
【分類號】：D922.294
【引證文獻】
相關碩士學位論文 前1條
1 王玉收;合同法對海上旅客運輸合同的影響的研究[D];復旦大學;2010年
本文編號：2256142
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