The Study Of The Legislative Position Of Voyage Charter Party In Chinese Maritime Code

Under the background of the revision of Chinese Maritime Code,the legislative position of voyage charterparty has aroused keen attention.The positioning problem includes three aspects: the legal nature of the contract,whether voyage charter party is subject to mandatory or non-mandatory norms,and the position arrangement.Since voyage charter party is indeed a contract of carriage,this thesis studies the confusion arising from the current legal provisions,analyzes voyage charter party under the principle of freedom of contract that cannot be applied to the mandatory norms of contracts of carriage of goods by sea evidenced by B/L.Then,it proposes a path for the position arrangement of voyage charter party and suggestions for improving the legal provisions.This thesis mainly includes the following four parts:The first part is an analysis of the disputes on the legal nature of voyage charter party.From the perspectives of “name” and “real”,the reasons for the qualitative disputes are sorted out.It is further pointed out that the nature of voyage charter party cannot be revealed by name or reality alone,and the nature of voyage charter party should be explored from the connotation revealed by the actual use.Therefore,I believe that the voyage charter party is in nature and has the nature of a contract of carriage.However,voyage charter party is different from the bill of lading contract of carriage,similar to land taxi transportation and bus transportation.Moreover,through the definition of the scope of "contract for the carriage of goods by sea" in Chapter IV of CMC,it is clarified that voyage charter parties do not belong to "contracts of carriage of goods by sea" under the framework of this chapter,and are different from contracts of carriage by bills of lading.The second part is a comparison of domestic and foreign legislation on voyage charter parties.Firstly,the provisions on voyage charter parties in civil law and common law are integrated and sorted out respectively,and there are three main legislative models:the provisions in the "Contract for the Carriage" and its provisions are applicable,the provisions in the "Charter Party" enjoy freedom of contract,and the provisions in the maritime law are not provided for.Most of the countries regulate the voyage charter party arbitrarily,and the application of mandatory provisions in our laws will create confusion in the specific system.Therefore,we should consider applying the arbitrary regulation to the voyage charter party.The third part is the analysis of voyage charter party under the principle of freedom of contract.First,the reason why voyage charter party is not subject to mandatory norm is the principle of freedom of contract.The reason why voyage charter party is not stipulated in the three major transport conventions is also that the freedom of contract followed by voyage charter party should not be unnecessarily restricted.It is further explained from the perspective that the parties to voyage charter party have equal negotiating positions and the contract emphasizes the pursuit of free value,which should not be unnecessarily restricted.Second,in contents of the freedom of contract,voyage charter party is different from the contract of carriage certified by B/L,which is manifested in three aspects: the freedom of contracting,the freedom of choosing the counterparty to the contract,and the freedom of the content of the contract.The fourth part is the discussion on the position arrangement of voyage charter party in CMC,proposing to retain voyage charterparties in Chapter IV "carriage of goods by sea",and to stipulate that the voyage charter party are provided for in parallel with bills of lading contracts and multimodal transport contracts.It also elaborates on the reasons why it would not be appropriate to move to Chapter VI.Then,on the basis of following the principle of perfection in the legal provisions of the contract,the specific legal terms of the contract are improved.