摘要
"严格控制转委托"的司法政策,其目标应主要归结于严格认定"转委托后果由委托人直接承担"的情形。在考察货运代理人履行行为时,应综合考虑委托的信赖基础及现代商事交易规律,允许货运代理人合理使用履约辅助人以扩展其履行义务的具体方式。对于合同主义务,货运代理人应亲自履行;若需转委托并由委托人直接承担后果,亦应征得委托人之同意。对于从义务及附随义务,货运代理人可无需经委托人同意,使用履行辅助人加以执行,并就其后果向委托人承担责任。
The main purpose of the judicial policy ＂keep sub-entrustment under restrict control＂ is to secure strict recognition of the circumstances where ＂the consequence of sub-entrustment shall be borne by the entrusting party directly＂ shall be ap- plied. In considering the fulfillment of obligations by the freight forwarder, we shall comprehensively take the trust foundation of the entrustment into regard, as well as the modern commercial trading rules. We may allow the freight forwarder to employ a compliance assistant to assist itself in the fulfillment of obligations under the contract so as to extend the specific ways to fulfill its contractual obligations. That is to say, for main obligations of the contract, the freight forwarder shall fulfill on his own. In the case where the freight forwarder entrusts a compliance assistant to fulfill his obligation and wishes to have any consequences thereof be borne by the entrusting party directly, the consent of the entrusting party shall be obtained. As for the minor obligations and accompanying obligations, the freight forwarder may employ a compliance assistant to fulfill its obli- gations without the consent of the entrusting party, under which circumstances the freight forwarder shall be held liable to the entrusting party for any consequences arising out of or in connection with sub-entrustment.
出处
《中国海商法研究》
CSSCI
2013年第4期9-15,共7页
Chinese Journal of Maritime Law
关键词
货运代理人
转委托
履行辅助人
freight forwarder
sub-entrustment
compliance assistant
