摘要
在涉外无单放货案件审理中,承运人往往以卸货港所在国存在特殊法律规定为由进行抗辩,认为自己依该特殊法律将货物交付给当地海关或者港口当局即已完成交付义务,不应再承担无单放货的法律责任。在此类案件审理中,"卸货港所在地法律"往往与《涉外民事关系法律适用法》第10条第1款规定的"外国法律"存在界限模糊之处,直接影响到对"卸货港所在地法律"查明责任的归属。实质上,《涉外民事关系法律适用法》第10条第1款规定的"外国法律"属于根据冲突规范指引的准据法,而"卸货港所在地法律"属于承运人根据中国法中《无单放货规定》第7条加以主张的免责事由,二者法律意义并不等同。对于卸货港所在地法律,应由当事人负证明责任。另外,承运人依据《无单放货》第7条规定主张免责,应同时证明两个事项:卸货港所在地存在特殊法律规定,根据该规定,承运人必须将货物交付给当地海关或者港口当局;承运的货物已交付给当地海关或者港口当局。
It is common that the carrier takes the existence of Special Law in the state of the discharge port as a defense in the judicial process on foreign related cases on release of goods without the presence of original B/L containing. In that circumstance, the carrier argues if he delivers goods to local customs or port authority according to Special Law, his duty to deliver has been completed and he should not take the legal responsibili- ty for release of goods without the presence of original B/L. In the trial of that case, the boundary between The Law of the Place of the Discharge Port and Foreign Law as provided in the first paragraph art.10 of Law gov- eruing the Application of Laws on Foreign-related Civil Relations is always vague, directly affecting the iden- tification of the attribution of responsibility of The Law of the Place of the Discharge Port. In fact, Foreign Law as provided in art. 10 should be regarded as applicable law as directed by conflict rules while Special Law should be regarded as carrier justification according to art.7 of The Stipulations of the Supreme People＇s Court on several Law Application Issues in the Trial of Cases Concerning Release of Goods without the Presence of Original B/L （Hereunder referred to as Interpretation of Release of Goods without the Presence of Original B/L） of Chinese Law. The legal meaning of the aforesaid two types of law is different. As for Special Law, the burden of proof lies in the carrier. Besides that, if the carrier takes art.7 of Interpretation of Release of Goods without the Presence of Original B/L as a justification, he must prove two factors concurrently. Firstly, the place of dis- charge port exists in Special Law which provides the carrier must deliver goods to local customs or port au- thority. Secondly, the carried goods have been delivered to local customs or port authority.
出处
《天津法学》
2016年第3期94-98,共5页
Tianjin Legal Science
关键词
无正本提单交付货物
卸货港所在地法律
外国法律
外国法查明
准据法
release of goods without the presence of original b/l
the law of the place of the discharge port
foreign law
the ascertainment of foreign law
applicable law
