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Study on the Doctrine of Privity in Contract of Carriage of Goods by Sea

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摘 要

合同相对性原则(大陆法称其为债的相对性原则)是合同规则、合同制度的基石。有了严格的相对性,“意思自治”、“合同自由”才获得了广泛的承认和尊重。但由于海上货物运输合同的特点是其与一个甚至多个合同第三方的利益相联系,所以在此领域中严格适用合同相对性原则的话,会给商业实践、航运实务带来许多矛盾、诸多不便。这些“相对性困扰”主要表现在:①合同第三方无法用自己的名义提起合同之诉以诉请得到合同权利;②合同第三方无法享有合同中约定的免责条款和责任限制等方面的保障。 随着国际贸易和海上货物运输的快速发展,提单转让愈加频繁、运输分工更为细致,提单持有人、发货人、运输参与方等运输合同第三方所涉群体越来越大,其利益保护问题就显得越发重要了。解决不好上述两方面的困扰,就会使法律适用的结果与商业活动的实际不相适合,进而妨碍海上货物运输和国际贸易的发展。 在此背景下,各国纷纷通过个案判决和全面立法等手段来逐步解决合同相对性原则带来的困扰。 本文围绕着海上货物运输合同中的合同相对性问题,以英国海上货物运输法及案例的演进为研究对象,分析了合同相对性原则对海上货物运输合同的影响。文章主要采用了比较分析的方法,取法律逻辑和商业实践的角度分析了先例和立法中所确立的解决方案,在探究先例所体现的价值取向和立法目的之所在后,对常见的运输合同第三方――提单持有人、发货人、运输参与方等做出了专题研究,研究的范围不仅包括了概念本身,还涉及了利益保护问题和责任承担问题,并基于此提出了笔者的解决方案。 文章共分三个部分、四个章节。 第一部分(第一章):对合同相对性基础理论进行了简要介绍,并重点评析了该原则发展过程中几个具有里程碑意义的案例,从而总结了相对性原则与对价理论的关系,提出了相对性原则造成的不公情形。 第二部分(第二章):结合海上货物运输合同,采用举例说明的方法,提出了两点“相对性困扰”,并对相对性原则的去留问题做了专题研究,得出结论:完全摒弃相对性原则的方法不足取。在海上货物运输的一些领域中直接赋予合同第三方以权利,并辅之以相当的义务才是上策。 第三部分(第三章、第四章): 第三章对相对性困扰之一的“第三方合同诉权”问题进行了研究。以分析英国在该问题上所确立的先例和制定法入手,辅以对我国《海商法》、三大国际公约、《运输法草案》相关规定的对比研究,分别对合同第三方――“提单持有人”和“托运人/发货人”的权利(诉权)、责任做出了专题讨论,并据此对我国《海商法》相关条款的完善提出了建议。 第四章则围绕着相对性困扰之一的“第三方合同抗辩”问题展开了讨论。本章采用了与第三章相同的研究方法,从分析英国所确立的先例和制定法入手,对比研究了我国《海商法》、三大国际公约、《运输法草案》的相关规定,并对“喜马拉雅条款”和“实际承运人制度”做出了专题讨论,最后对我国《海商法》相关制度的健全提出了建议。 以上概括介绍了本文所涉问题、研究方法、解决思路及其佐证。文章中所提的观点是笔者在学习和研究过程中产生的一些浅陋的想法和体会,希望藉此起到抛砖引玉的作用,引起学人共同探讨,为健全我国《海商法》添砖加瓦。

关键词 合同相对性、提单持有人、托运人、发货人、喜马拉雅条款、实际承运人
STUDY ON THE DOCTRINE OF PRIVITY IN CONTRACT OF CARRIAGE OF GOODS BY SEA

ABSTRACT

“Privity of contract” (called “privity of debt” in civil law system) is the corner stone of contract rule and system, which underlies wide recognition and respect of “autonomy” and “freedom of contract”. What characterizes contracts of carriage of goods by sea is they involve one or even many third parties. Therefore, strict application of “doctrine of privity” in this field will bring enormous conflicts and

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