| （摘要内容经过系统自动伪原创处理以避免复制，下载原文正常，内容请直接查看目录。） 本文是对送交生意中的风险累赘轨制的比拟法研究，以德公法为研究重点，德语论文范文，联合《结合国国际货色发卖合同条约》中的相干轨制，力图对轨制结构、法理基本，特殊是司法后果停止评论辩论，并对该轨制在中公法上的实用停止阐释。第一部门是对送交生意的概述。依据给付地的分歧，传统年夜陆法系将债分为赴偿之债、往取之债和送付之债。准绳上，给付地决议债权人须于何处为给付行动（也在必定水平决议给付责任的规模），并令给付成果产生；然则送付之债作为一种破例，其给付地与给付成果地分歧，是以有需要对其停止特殊评论辩论。第二部门是对风险和风险累赘的系统组成的引见。在债之关系成立直到债权完整实行终了之间，平日存在给付风险和看待给付风险。准绳上，须要分离依据特定之债和品种之债来肯定给付风险和看待给付风险由谁承当。平日，给付成果产生，德语论文网站，看待给付风险方移转。然则，在送交生意中，却存在破例。由于给付地与给付成果地的分歧，招致出卖人在给付地作出给付行动时给付成果并没有产生，然则看待给付风险却转移。简略来讲，就是看待给付风险提早到给付行动作出后但给付成果产生前转移。在第三部门，笔者重点对送交生意中风险累赘的组成要件停止过细剖析。德公民法典第447条对送交生意风险转移规矩作出了较为过细的划定，是以，有需要经由过程对个中每个组成要件停止评论辩论，以论证能否有需要在中公法长进行实用和若何实用。第四部门对送交生意中出卖人的发送责任停止重点评论辩论。在送交生意中，发送既属于出卖人的责任领域，也是为了买受人的好处。是以出卖人承当了一个特别的责任--即发送责任，一旦违背了发送责任，对于风险能否转移等司法效果会发生主要作用，是以有需要侧重就这一特别责任的规模和责任违背以后果停止评论辩论。第五部门触及送交生意中，买受人承当价金风险后若何救援的成绩。当买受人承当价金风险后，就会涌现伤害与要求权分别之窘境。即买受人有伤害，但由于其与承运人之间没无形成合同关系，且其并未取得标的物之一切权，是以没有要求权；而出卖人基于运输合共享有要求权，却没有伤害。此时，伤害与要求权有时之分别，形成成果上之不公正。是以，德公法实际上成长出第三人伤害清理的实际，即出卖人得主意买受人之伤害，向承运人主意伤害补偿；再将该伤害补偿所得作为代偿好处，移转给买受人，以弥补其伤害。固然德国商法典的相干划定招致了该实际在实用上的限缩，但其在中公法上仍有引入之能够，使其成为买受人的一种救援门路。 Abstract: This paper is to sent to business risk burden rail system comparison research method, by virtue of public law as the research focus, joint "United Nations international goods sales contract treaty coherent rail system, trying to to rail system structure, jurisprudence basic and special judicial consequences stop comment debate, and interpretation of the rail system in the law of practical. The first section is an overview of the business. According to the differences of payment, the traditional land law system will be divided into debt to repay the debt, the debt to get and send to pay. In principle, the payment to resolution creditors shall where payment for action (also in must level resolution liability to pay scale), and to make payment results; however sent to pay debt as an exceptional, the payment to and to pay the differences of results is to need to stop its special comment debate. The second section is the introduction of the system of risk and risk burden. In the relationship between the establishment of the debt until the end of the full implementation of the debt, there is a risk of payment and look at the risk of payment. In principle, to split according to the specific debt and variety of debt to affirm the payment risk and payment risk by who bear the view. On weekdays, payment results, see risk transfer payment. However, in to the business, but there is an exception. Because of the differences between the payment and the results of payment, the seller in the payment of the payment of action when the results did not produce, but look at the risk of payment transfer. Briefly speaking, is to look at the benefit of the payment of the risk before the payment of action to be made after the transfer of the results. In the third part, the author focuses on the elements of business risk burden to stop the meticulous analysis. German Civil Code article 447 to deliver business risk transfer rules made more meticulous delineated, is to, there is a need to through the process of medium every elements stop commenting on the debate, to demonstrate whether need on law for practical and how practical. Fourth departments to send business to the seller's responsibility to stop the delivery of key comments. In the business, it is not only to send the seller's responsibility, but also to buy the benefits of the people. To betray a person to bear a special responsibility -- that is responsible for sending, once the breach of the duty to send, a risk can transfer effect of justice will occur mainly influence, there is a need to focus on the contrary to the special responsibility of the scale and the liability after fruit stop commenting on the debate. The fifth sector to reach business, the buyer bear the risk of price performance after the gold to rescue. When the buyer bear the price risk, will be the emergence of damage and claim of dilemma. That the buyer to hurt, but due to its between carrier and no formation of a contractual relationship, and it did not achieve all the rights of the subject matter is to not claim; and the seller based on traffic contract sharing claim, but didn't hurt. At this point, the injury and the right to claim sometimes respectively, the formation of a result of injustice. Is to de law actually grow out of third party damage to clean up the actual, namely the seller idea buy hurt the one who, to the idea of the carrier damage compensation, and then the damage compensation income as a compensatory benefits, transfer to the buyer to compensate for the damage. Although the German Commercial Code of the relevant provisions of the actual in the practical limit shrink, but it is still in the public law can be introduced, so that it became a way to buy a person to buy. 目录: |
