【作者】 胡正良；

【导师】 司玉琢；

【作者基本信息】 大连海事大学 ， 国际法学， 2003， 博士

【摘要】 围绕为我国社会主义市场经济体制下《中华人民共和国航运法》(以下简称《航运法》)的制定提供理论支撑这一主题,以在系统理论研究基础上为建立科学的航运市场经济法律制度提供一套理性的和可操作的法律规则为目标,本课题以微观经济学、法理学、法律经济学、行政法学和经济法学的基础理论作为指导,立足于我国航运市场经济的现实和社会主义市场经济体制下航运市场经济对法律的内在需求,充分运用经济法理论研究的成果,借鉴欧盟和美国航运法理论研究的成果和先进的立法例,以马克思主义的法学研究方法为指导,遵循整体性原则、互联性原则、有序性原则和动态性原则的系统研究方法,以及适合性与移植性、实证性与假设性相结合的研究方法,航运法的系统基础理论和航运法的主要制度作了系统、全面和比较深入的研究,并提出了各种制度下《航运法》的具体立法建议。 论文共由七章构成,其中: 第1章为引言,内容包括课题的主题与范围,课题范围内已有文献的评述,课题研究的技术路线和方法,以及课题研究的支持。 第2章为航运法基础理论,介绍和分析了我国航运市场概况,运用经济法理论研究的成果,针对航运市场经济的特殊性,分析和论述了航运法的调整对象、范围、地位和与其他法律的关系、价值、基本原则,《航运法》制定的必要性、目的和应遵循的主要原则,并提出了《航运法》的框架结构建议。 第3章为政府航运市场管理体制的法律规制,以我国社会主义市场经济体制下国家干预经济的理论和政府经济职能的理论为指导,介绍和分析了我国政府航运管理体制的历史沿革和现状,论述了《航运法》应对政府航运市场管理机构及其职能作出的规定,包括指导思想与原则、航运市场管理机构的设置、国务院交通主管部门和省级地方人民政府交通主管部门的具体职能,以及航运中介机构的地位和作用。 第4章为航运市场准入的法律规制,分析和论述了航运市场准入制度的概念、更多还原

【Abstract】 The present study aims at providing theoretical support for the drafting of the Shipping Law of the People’s Republic of China, hereinafter referred to as "China Shipping Law", with a set of reasonable and enforceable legal rules regulating economic relations in the shipping market based upon systematic theoretical studies. In the light of the reality of shipping market economy in China and its full need for legislation under the socialist market economy, as guided by the basic theories of microeconomics, jurisprudence, law and economics, administrative law as well as economic law, by full application of the achievements in the studies of economic law and by reference to the achievements in the studies and advanced shipping laws in European Union and the United States, by use of scientific ways in the legal studies, the present comprehensive study covers systematic basic theories and the various legal systems in the area of shipping law and provides detailed suggestions for the drafting of China Shipping Law.This t hesis c onsists o f s even c hapters w ith t he m ain c ontents o f e ach chapter a s follows: -Chapter 1 "Introduction" covers the theme and scope of the subject, comments on the available related reference materials, the technical routes followed and ways used in the studies as well as the support provided therefor.Chapter 2 "Basic Theories of Shipping Law" introduces the prevailing situation of the shipping market in China, by application of the achievements in the studies of economic law and in the light of the features of shipping market economy, discusses the subject-matters, scope, position in the system of law, relations with other laws, values and basic principles of shipping law, the necessities and purposes of the making of China Shipping Law as well as the main principles to be followed, puts forward suggestions of framework of the Law.Chapter 3 "Regulation on the Governmental Administration in Shipping Market" is guided by the theories of State’s intervention in the economy under the socialist market economy and those regarding the changes of governmental economic functions, introduces the evolution and prevailing situation of the governmental administration in the shipping industry in China, expounds and puts forward the provisions to be contained in China Shipping Law regulating the governmental shipping administrative institutions and their functions including, inter alia, guiding principles, establishment of the institutions, the respective functions of the competent authority for communications under the State Council and those under the local people’s governments under the provincial level as well as the legal status and functions of shipping intermediaries.Chapter 4 "Regulation on Shipping Market Entrance" introduces the concept, necessities of the legal system of shipping market entrance and its basic structure as well as the prevailing situation of the system, discusses the necessities, principles and main contents regarding the setting up in China Shipping Law of the special system ofshipping market entrance.Chapter 5 "Regulation on Shipping Market Order" analyses the subject-matters to be regulated by and significance of the system of the shipping market order, by application of the achievements in the theoretical studies of competition law, by reference to the shipping competition legislation in the European Union and the United States, discusses various issues of regulation on shipping competition including, inter alia, firstly, regulation on the shipping monopoly covering its concept and forms, shipping market monopoly, concentration of shipping companies as well as shipping administrative monopoly; secondly, regulation on the restrictive competition acts in the shipping market covering its concept and forms, horizontal restrictive competition acts and vertical restrictive competition acts in the shipping market; thirdly, exemption from the regulation on the restrictive competition acts in the shipping market covering its concept, reasons and forms, exemption of liner conferences, exemption of loyalty contracts, exemption of service contracts as well as non-exemption of stabilization agreements; fourthly, regulation on the unjustifiable competition acts in the shipping market. This Chapter also discusses the regulation on other transactional acts in the shipping market covering the concepts of these acts and necessities of regulation, regulation on the acts relating to the qualifications of shipping operation, liner shipping and shipping documents.Chapter 6 "Regulation on the Macro-control on Shipping Market", based upon the theoretical analysis of concept, necessities, tasks and means of the macro-control on the shipping market, concept, significance, features and system of such regulation, expounds various related aspects, inter alia, firstly, regulation on the shipping planning covering the concept, significance and contents of such regulation, forms of shipping plans and the plans to be regulated by China Shipping Law as well as the making and enforcement of shipping plans; secondly, regulation on the investment in shipping assets covering the concept, administrative system and macro-control of such investment; thirdly, regulation on the macro-control of carrying capacities in shipping market covering mechanism of standardization of vessels in shipping market, mechanism of automatic withdrawal of capacity from service in shipping market and capacity adjustment fund as well as mechanism of urgent control of capacity in shipping market; fourthly, regulation on the pricing in shipping market covering purposes of such regulation, necessities and main contents of regulation by China Shippmg Law as well as regulation on the forms of and administration on shipping prices.Chapter 7 "Conclusions" is a summary of the present study.The main achievements of the present study can be summarized as follows: -1. Preliminary establishment of the system of basic theories of Chinese shipping law through detailed demonstration of the subject-matters, position in the system of law, relations with other laws, values and basic principles of shipping law by application of the achievements in the studies of basic theories of economic law;2. Demonstration of the necessities, purposes, principles to be followed, framework and main contents of China Shipping Law by use of the theories of jurisprudence, law of legislation and economic law;3. Preliminary establishment of the theoretical series of legal systems regulating the governmental administration, market entrance, market order and macro-regulation in shipping market under Chinese socialist market economy by use of the achievements in the studies of economic law and administrative law and by reference to the advanced legislations in the developed shipping countries;4. P utting forward a s eries o f s uggestions for t he i mprovement o f t he p revailing Chinese laws and regulations regarding administration on shipping market based upon theoretical studies.更多还原