论“近因”理论在我国船舶碰撞法律原因分析中的应用
发布时间：2019-07-10 11:06
【摘要】： 船舶碰撞中的法律因果关系属于侵权法上的因果关系范畴,又有独特的性质。我国侵权法上因果关系理论在基本上仅限于对国外一些理论的介绍,主流的“必然因果关系理论”只强调原因和结果的之间的必然性,并未对判定这种必然性的现实标准做细致的阐述。而且在法律条文中也无具体解释。这导致在对于船舶碰撞案件的具体审理中,不同的法院所审理的意见往往出现差异,使得此类案件的上诉率很高。在船舶碰撞中因果关系的认定中,英美法的“近因理论”是一套精密、准确的理论模式。同时,我国海商立法有着浓重的英美法理念,在两大法系融合的趋势下,运用“近因理论”解决船舶碰撞案件审判实践中所遇到的问题是一个值得探讨的。 论文第一章分析了英美法与大陆法中因果关系理论的联系和差异,并以此作为为全文的插入点。该部分首先阐述了“两分法”的因果关系思维模式被大陆法系和英美法系共同接受,两者具有相通性。接下来总结了两大法系的三点差异:对于判例的重视程度不同、对法律规则和法律原则的重视程度不同、过失和因果关系之间的逻辑关系理解不同。此章的目的在于通过两大法系因果关系理论的对比来寻找“近因理论”融入我国侵权法的理论背景和可能性。 论文第二章简述了船舶碰撞侵权中的“近因”理论。介绍了“近因”理论的定义,并结合经典案例详述了该理论中的“but for”条款、无法预见的直接结果以及打断因果链的“插因”,以便在下一章中援引。 论文第三章运用第二章介绍的“近因”理论对三组典型案例进行分析,突出“近因理论”的实用性。案例包括发生在我国水域的具有在司法实践中难以断定的复杂因果关系的船舶碰撞案例,运用“近因”理论对其进行分析,说明了“近因理论在处理这类问题上的实用性。 论文第四章通过对近因理论相对统一性的分析,结合我国参加的船舶碰撞国际公约以及我国海商法立法背景和两大法系日益融合的趋势,旨在论述船舶碰撞侵权法中因果关系认定中参照适用近因理论的现实可能性。 在论文最后得出参照适用近因理论进行船舶碰撞侵权法中因果关系认定具有更具有现实意义的结论。并就引入机制的安排提出了个人一点粗浅的建议,期望对于解决这一问题有所帮助。
[Abstract]:The legal causality in ship collision belongs to the category of causality in tort law and has a unique nature. The theory of causality in tort law of our country is basically limited to the introduction of some foreign theories. The mainstream "inevitable causality theory" only emphasizes the necessity between cause and result, and does not elaborate the realistic standard of judging this necessity in detail. And there is no specific explanation in the legal provisions. This leads to differences in the opinions of different courts in the specific trial of ship collision cases, which makes the appeal rate of such cases very high. In the cognizance of causality in ship collision, the "near cause theory" of Anglo-American law is a set of precise and accurate theoretical model. At the same time, China's maritime legislation has a strong concept of Anglo-American law. Under the trend of the integration of the two legal systems, it is worth discussing to use the "near cause theory" to solve the problems encountered in the trial practice of ship collision cases. The first chapter analyzes the relationship and difference between Anglo-American law and continental law, and takes it as the insertion point of the full text. This part first expounds that the causality thinking mode of dichotomous method is accepted by civil law system and Anglo-American law system, and the two are identical. Then it summarizes three differences between the two legal systems: different degrees of attention to cases, different degrees of attention to legal rules and principles, and different understandings of the logical relationship between negligence and causality. The purpose of this chapter is to find the theoretical background and possibility of the integration of "near cause theory" into tort law of our country through the comparison of causality theory between the two legal systems. The second chapter briefly describes the theory of "near cause" in ship collision tort. This paper introduces the definition of "near cause" theory, and expounds the "but for" clause in the theory, the unforeseen direct result and the "interpolation" of breaking causality chain in combination with the classical case, so that it can be quoted in the next chapter. The third chapter analyzes three groups of typical cases by using the "near cause" theory introduced in the second chapter, and highlights the practicability of the "near cause theory". The cases include the cases of ship collision with complex causality which is difficult to be determined in judicial practice in the waters of our country. The "near cause" theory is used to analyze it, and the practicability of the "near cause theory" in dealing with this kind of problems is explained. The fourth chapter, through the analysis of the relative unity of the theory of near cause, combined with the international convention of ship collision to which our country is a party and the trend of the increasing integration of the legislative background of maritime law and the two legal systems of our country, aims to discuss the realistic possibility of referring to the theory of near cause in the cognizance of causality in the law of ship collision tort. At the end of the paper, it is concluded that it is of more practical significance to identify causality in ship collision tort law according to the applicable near cause theory. Some superficial suggestions are put forward on the arrangement of the introduction mechanism, which is expected to be helpful to solve this problem.
【学位授予单位】：大连海事大学
【学位级别】：硕士
【学位授予年份】：2009
【分类号】：D922.29
本文编号：2512563
[Abstract]:The legal causality in ship collision belongs to the category of causality in tort law and has a unique nature. The theory of causality in tort law of our country is basically limited to the introduction of some foreign theories. The mainstream "inevitable causality theory" only emphasizes the necessity between cause and result, and does not elaborate the realistic standard of judging this necessity in detail. And there is no specific explanation in the legal provisions. This leads to differences in the opinions of different courts in the specific trial of ship collision cases, which makes the appeal rate of such cases very high. In the cognizance of causality in ship collision, the "near cause theory" of Anglo-American law is a set of precise and accurate theoretical model. At the same time, China's maritime legislation has a strong concept of Anglo-American law. Under the trend of the integration of the two legal systems, it is worth discussing to use the "near cause theory" to solve the problems encountered in the trial practice of ship collision cases. The first chapter analyzes the relationship and difference between Anglo-American law and continental law, and takes it as the insertion point of the full text. This part first expounds that the causality thinking mode of dichotomous method is accepted by civil law system and Anglo-American law system, and the two are identical. Then it summarizes three differences between the two legal systems: different degrees of attention to cases, different degrees of attention to legal rules and principles, and different understandings of the logical relationship between negligence and causality. The purpose of this chapter is to find the theoretical background and possibility of the integration of "near cause theory" into tort law of our country through the comparison of causality theory between the two legal systems. The second chapter briefly describes the theory of "near cause" in ship collision tort. This paper introduces the definition of "near cause" theory, and expounds the "but for" clause in the theory, the unforeseen direct result and the "interpolation" of breaking causality chain in combination with the classical case, so that it can be quoted in the next chapter. The third chapter analyzes three groups of typical cases by using the "near cause" theory introduced in the second chapter, and highlights the practicability of the "near cause theory". The cases include the cases of ship collision with complex causality which is difficult to be determined in judicial practice in the waters of our country. The "near cause" theory is used to analyze it, and the practicability of the "near cause theory" in dealing with this kind of problems is explained. The fourth chapter, through the analysis of the relative unity of the theory of near cause, combined with the international convention of ship collision to which our country is a party and the trend of the increasing integration of the legislative background of maritime law and the two legal systems of our country, aims to discuss the realistic possibility of referring to the theory of near cause in the cognizance of causality in the law of ship collision tort. At the end of the paper, it is concluded that it is of more practical significance to identify causality in ship collision tort law according to the applicable near cause theory. Some superficial suggestions are put forward on the arrangement of the introduction mechanism, which is expected to be helpful to solve this problem.
【学位授予单位】：大连海事大学
【学位级别】：硕士
【学位授予年份】：2009
【分类号】：D922.29
【引证文献】
相关硕士学位论文 前1条
1 张静;船舶碰撞民事责任因果关系问题研究[D];大连海事大学;2011年
，本文编号：2512563
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