중국해상법상 해상여객운송계약에 관한 연구

Abstract

The marine contract provisions in the Maritime Code of the People's Republic of the China (MCC) are the main legal sources of the contract of carriage of passenger by sea in China. On international carriage, except MCC, Athens Convention relating to the Carriage of Passengers and their Luggage by sea, 1974 is also applied. This study bases on the provision of MCC. The concrete scope is as follows:

1) Introduction to international convention and legislative examples of various countries on the contract of carriage of passengers by sea.(Chapter 2)

2) The concept and nature of the contract of carriage of passengers by sea. (Chapter 3)

3) The conclusion and cancellation of the contract of carriage of passengers by sea. (Chapter 4)

4) Legal effect of the contract of carriage of passengers by sea.(Chapter 5)

5) Conclusion. (Chapter 5)

Through the study of the Contract of Carriage of Passengers by sea of MCC, this thesis points out the weak points in MCC and also puts forward some legislative suggestions and remedy measures as follows:

1) In MCC, passenger includes those who go on board without paying a fare to the carrier with the consent of the carrier and those who are exempted from being considered under related provision. It is necessary to provide the liability of the carrier to them.

2) Because the time of contract's conclusion is involved in whether right and obligation is exist it is provided in MCC, specially in the case of the charter party.

3) In order to balance the benefit of the carrier and passenger, it is necessary to provide the condition of canceling contract to change the situation that carrier one-sidedly provides the condition.

4) In the matter of performing carrier's liability in MCC on the existing provision, it should be added that the performing carrier applies the provision of carrier's liability for the part of the carriage performed by him. Otherwise it makes mistake that the performing carrier should be responsible for the whole carriage periods.

5) In order to protect benefit of the passenger for the suffered as a result of the death of or personal injury to a passenger caused by a shipping incident, the carrier should be liable regardless of the existing of carrier's fault. Simultaneously, "defect in the ship", as one of the ship incident, should be defined because it is closely connected with the strict liability of the carrier.

6) Pecuniary loss resulting from the passenger's delayed arrival and the luggage not having been redelivered to the passenger within the stipulated time, as breach of contract, carriers should indemnify for it.

7) Limit of liability of the carrier who engaged in civil carriage should be raised according to the nation's economical level. In order to solve the matter that avoided the appliance of the limitation of liability of the carrier, when claiming for carrier's liability in tort, it is necessary for the passenger to provide the limitation of liability of the carrier and it must be applied in all the claim what instituted about passenger's damage and injury in the course of carriage by sea. Global limitation of carrier's liability for passenger's death and injury should to be repealed, if china wants to develop the business in super cruise ship.

8) Because the current law and the system of insurance don't solve the matter what secures the passenger receiving indemnity from carrier in MCC. The compulsory insurance system should be introduced and the insured amount should be fixed by taking account of the insure market's undertaking ability and carrier's economic level.