Study On The Liability Of Uninsured Courier Damages

The issues related to the liability for loss and damage of uninsured express shipments are highly controversial in both practice and theory,and are still inconclusive,and this issue is inevitable under the rapid development progress of e-commerce industry.In this context,this paper combines the current legal provisions,the divergent opinions in theory,the status of judicial practice on the validity of the format clause of uninsured express limit compensation,proposes the application of full liability,and justifies its legitimacy,while exploring the legal issues related to the introduction of the rule of offsetting fault in the application of full compensation to determine the scope of damages.This paper is divided into five parts.The first part is the introduction.The first part expresses that there are many uninsured express shipments lost and destroyed in China nowadays,but their compensation is still controversial,so it introduces the background of the selected topic and establishes the premise that this paper needs to be analyzed in a specific context.By using the literature research method,we browsed and learned about the relevant provisions of the price guarantee clause in the express service contract,used the practice survey method to understand the actual situation of introducing the price guarantee clause to consumers in the express industry,as well as the situation of prompting and explaining when signing the limit compensation clause and the handling of cargo disputes,used the case study method to collect actual judgments and analyze the tendency of judicial precedents,used the comparative study method to compare the views of experts and scholars from various countries on the above controversies and their respective views on the issue.The theoretical basis and practical materials for this thesis are the views and representative opinions of experts and scholars from different countries on the above disputes.The second part discusses the legal application and judicial precedents of uninsured courier loss and damage compensation and the reasons for the confusion.Based on the essential difference between the commercial express industry and the postal industry,it is argued that the provisions of the Civil Code rather than the Postal Law should be applied.The third part explores the effectiveness of the form clause provided unilaterally by the express delivery enterprises when the amount compensated by the limited indemnity clause is lower than the actual loss.The content of the eligible judgments between 2018 and 2021 is used to summarize and analyze the basis for its validity determination.The validity is based on the industry practice and the true intention of the parties to the express contract,and the second is that the parties to the form terms have done their duty to reasonably remind,and the form terms do not violate the prohibitions in laws and regulations and are valid.The reasons for invalidation are as follows: invalid because the courier company has not done its duty to remind,invalid because the format clause violates the principle of fairness,and invalid because the courier company has intentionally or grossly negligent to make the interests of consumers suffer significant damage.The academic community also has conflicting views,and those who agree with the validity argument believe that it is in line with the principle of freedom of contract,the principle of fairness,and the practice of industry transportation and valid,while those who agree with the invalidity argument argue that the restrictive indemnity clause violates the principle of fairness and freedom of contract,as well as the existence of moral hazard and invalid.In this paper,after analyzing the nature of the express service contract and the origin of the limit compensation system and the social cost and risk sharing,we believe that it should be invalid.The fourth part discusses the principle of full indemnity for loss and damage of uninsured express.The principle of full compensation should be applied because it can manifest fairness and justice of civil law,prevent speculation and achieve the rightful basis of balance of interests.The fifth part mainly discusses the idea of introducing the rule of offsetting fault when the principle of full indemnity is applied to delineate the scope of compensation after the damage and loss of uninsured express.When the express delivery enterprises bear the full liability after the damage and loss,the introduction of the rule of offsetting fault can balance the interests of consumers and express delivery enterprises,and is also the jurisprudential basis for the introduction of the rule of offsetting fault for full compensation.Because the rule of set-off meets the principle of fairness and the principle of honesty and credit,it can be used in the principle of full compensation to make consumers and courier enterprises meet the requirements of fairness and justice,so as to protect the parties to perform the contract honestly and faithfully.Fault offset rules in the courier enterprises to assume full liability for damages for breach of contract in the application of the two elements to be met,one is the objective elements,including the breach of contract must be responsible for the corresponding breach of compensation and the consequences of damage and the victim’s behavior has a causal relationship between the two layers of meaning.The second is the subjective element,which requires the victim,i.e.,the consumer as the subject of the application of the fault offset should have subjective fault,where the fault includes both intentional and negligent circumstances.If the consumer is negligent in causing the damage to the express goods,in order to determine the maximum amount of damages based on the foreseeability rule applied by the principle of full indemnity,the degree of fault of the consumer shall be offset by reference to the degree of negligence,in order to determine the corresponding range of compensation.Specifically,if the consumer does not specifically indicate the state,properties and quantity of the delivered goods,resulting in the destruction of the express goods,the consumer is liable for fault.The rule of offsetting fault to balance the rights and obligations of consumers and courier companies in the legal relationship of the contract of carriage,to promote the development of the express industry.