A Study On Perfection Of The Legal System Of Shipping Logistics Liability Insurance In China

With the rapid development of shipping logistics industry,shipping logistics operators may bear economic compensation liabilities for any cargo damages or losses,infringements of property,person or environment in any logistics link,such as transportation,warehousing,packaging,handling,distribution,processing or information processing,etc.These kinds of liabilities present remarkable plural,complex and uncertain characteristics,which have made shipping logistics operators facing severe liability risks.Shipping logistics liability insurance is the core mechanism for shipping logistics operators to disperse liability risks,enhance the ability to resist risks,and compensate the aggrieved parties.In consideration of these circumstances,how to perfect the corresponding legal system to promote the maximum realization of such insurance's function has already demonstrated realistic necessity.From the perspective of law,it is necessary to make a comprehensive,and systematic analysis of the legal system of shipping logistics liability insurance,in particular,it should be based on the objective condition of serious asymmetry between the current legal system and the shipping logistics liability insurance business,and it also needs to seek and provide sufficient theoretical basis for the perfection of such legal system.Therefore,through several research methods of historical analysis,comparative analysis,systematic analysis and empirical analysis,this dissertation combines national conditions and judicial practice,carries out a comprehensive exploration of the legislation system and the content of legal norms related to the legal system of shipping logistics liability insurance in China,probes into the existing problems,and provides several specific countermeasures.The above exploration will made up the bland of theoretical study on the legal system of shipping logistics liability insurance,provide some reference for perfection of the existing legislation system and legal norms,and provide theoretical support for shipping logistics operators to avoid liability risks,balance the interests of relevant parties,maintain market order and promote development of shipping logistics industry.In addition to the foreword and conclusions,this dissertation consists of six chapters.The foreword mainly expounds the background,the current state and the literature review related to this dissertation,and also the main content,the methods and the significance of the research in this dissertation.Chapter One "The Basic Theory of the Legal System of Shipping Logistics Liability Insurance",it mainly analyzes some theoretical supports for the perfection of such legal system,with consideration of the definition of the connotation,evolution and essential characteristics of shipping logistics liability insurance.Firstly,it explains such insurance's functional differentiation and relationship with other forms of compensation and types of insurance,and then demonstrates that it is indispensable or irreplaceable for the civil damage compensation system in the field of shipping logistics,and that it is not only some economic phenomenon deriving from the development of shipping logistics,but also independent mechanism which possesses its own specific attributes and functions.Secondly,it argues that the social and economic functions of the legal system of shipping logistics liability insurance are reflected in decentralization of shipping logistics operators' liability risks,making up for losses of victims,realizing social justice,safeguarding public interests and order,and promoting the sustainable development of the shipping logistics industry.Thirdly,it analyzes the value measurements in the legal system of shipping logistics liability insurance,and clarifies the specific meanings,tendencies and requirements of the values of freedom,equality,justice,order and efficiency regarding to the perfect process of such legal system,so as to provide direction guidance for solving specific legal issues.On the above analysis,it lays the foundation for perfection of the legal system of shipping logistics liability insurance in China.Chapter Two "The Current Status and Overall Perfect Plan of the Legal System of Shipping Logistics Liability Insurance in China",it mainly presents the overall perfect plan for such legal system,which contains two aspects,based upon analysis of the current status and problems of such legal system in China.Firstly,it proposes to perfect the existing legislation system of shipping logistics and liability insurance.The primary task is to complete the existing decentralized legislative pattern at the current stage,and then a single-line logistics law may be formulated when the time is ripe.Such single-line logistics law needs not only to clarify some fundamental contents of logistics insurance contract,such as the concept,the subject matter and the applicable law,but also to define the determination standards for shipping logistics operators' liabilities.Secondly,it proposes to perfect the content of legal norms related to shipping logistics and liability insurance.In consideration of the specific characteristics of the liability insurance institution,besides some supporting and auxiliary mechanism,these contents mainly demonstrates the following four aspects:the clarification of the status of relevant legal subjects,the scope and determination of insurance liability,the direct claim right of the third-party against the insurers,and the application of compulsory insurance.The following Chapter Three towards Chapter Six will separately analyze the existing problems and perfect proposals around the above four aspects.Chapter Three "The Problems and Perfection of the Status of Legal Subjects Related to Shipping Logistics Liability Insurance",it mainly defines the status of the subjects of shipping logistics liability insurance,such as the insurer,the insured and the third-party suffering damages,which are the primary tasks of improving the legal system of shipping logistics liability insurance.Firstly,based upon analysis of specific factors restricting the definition of the mutual insurance organization,and in conjunction with relevant provisions of foreign law,it explores the realization route to establish such organization as the qualified status of insurer,so as to give full play to its superiority in underwriting.Secondly,it analyzes the special attributes of the status of the insured,that is,the shipping logistics operator,as well as the constraints restricting the definition of its legal status,and then proposes the specific content and basis for establishing its independent status.Finally,a study is conducted on the identification and scope of the third-party suffering damages,in order to realize the clarity of the identification and the criteria of its legal status.Chapter Four "The Problems and Perfection of the Insurance Liability of Shipping Logistics Liability Insurance",it mainly discusses the scope and determination of insurance liability regarding to the shipping logistics liability insurance,in consideration of the specific particularities of shipping logistics liability risks.The purpose of such discussion is to solve the problems of insurer's compensation responsibility against the insured.Firstly,it analyzes a controversy over the scope of insurance liability that whether the liability for breach of contract,the liability for violating administrative law,the liability for moral damages,and the liability for punitive damages can be reasonably accepted as insurance liability.After demonstration,it is concluded that only liability for breach of contract and moral damages can be accepted as insurance liability.On this basis,it then clarifies the ought-to-be scope of insurance liability of shipping logistics liability insurance.Secondly,it concretely analyzes the attributes of shipping logistics liability risks,such as multiple aspects of liabilities,diversity of liabilities,and controversy of liability evaluation,and also the influence or restriction of these attributes on the determination of the insurance liability.Finally,it proposes some ways to perfect the insured's liability form and doctrine of liability fixation,so as to solve the problems of determination of the insurance liability.Chapter Five "The Problems and Perfection of the Direct Claim Right of the Third-party against the Shipping Logistics Liability Insurer",it mainly discusses the conditions under which the third-party suffering damages is entitled to directly exercise such right to request payment of insurance benefits,and the conflict between such right and the "pay first" clause.Firstly,it making a textual research and reference of the foreign law concerning the specific conditions for exercising such right,and attitudes about the conflict between it and the "pay first" clause.Secondly,combining with the current situation of legislation in China,it puts forward some advices of modification towards legal norms,so as to perfect the conditions for exercising such right,and argues the reasons and specific scenario that the "pay first" clause may take priority.Chapter Six "The Application and Perfection of the Compulsory Liability Insurance to the Shipping Logistics",it mainly discusses the issue of application of the compulsory liability insurance to the shipping logistics.Firstly,it concretely analyzes the value and necessity of compulsory liability insurance for shipping logistics,and concludes that it is necessary to introduce the mandatory liability insurance from the perspective of reducing the adverse impact of the shipping logistics upon the public interests.Secondly,through researching on the attitudes and practices related to the application of the compulsory liability insurance to the shipping logistics in the foreign law,and combining with the status quo of legislation in China,it explores the strict application principles and specific conditions of the compulsory liability insurance in the field of the shipping logistics in China,and elaborates that it may achieve that the environmental compulsory liability insurance is effectively applied to the shipping logistics,relying upon the formulation of the special regulations concerning environmental compulsory liability insurance.The conclusions are the summarized main points of view based upon discussion in this dissertation.