【作者】 王小波；

【导师】 徐家玲；

【作者基本信息】 东北师范大学 ， 世界史， 2010， 博士

【摘要】 《罗得海商法》形成于公元8世纪左右,因地中海东南部的罗得岛而得名,是在地中海贸易往来日益频繁的大背景之下,产生于拜占庭帝国的成文法典,内容涉及海事贷款、船舶碰撞、共同海损、海难救助等海事法律制度,是研究拜占庭史和世界海商法史的极为珍贵的第一手资料。《罗得海商法》的产生不是偶然的,它是在继承和发展古代海商法律文明的基础上发展而来的。海商法具有非常悠久的历史,约公元前20世纪的《“苏美尔”法典》等法律文献中已经有了海商法的萌芽。《汉谟拉比法典》中与海商法有关的条款更是多达10个,内容涉及商船租金、船工责任、两船相撞责任等等,堪称当时世界最完善的海商法。古代埃及和腓尼基地区虽然未曾发现有与海商法有关的法典传世,但其造船业与航海业的发达让我们相信当时海事规则的存在,传说罗得岛上的海商法就是渊源于腓尼基人的海商法,我们寄希望于新的考古成果的发现能够给出有力的证明。早在古希腊时期,罗得岛就已经是东地中海一带的航海贸易中心,往来穿梭的各民族和地区的商人们都喜欢把海上贸易纠纷放在罗得岛来解决,久而久之,这里便逐渐形成了独具特色的海商法律文化。当时的罗得岛人是周围一带的海上主宰,有着强大的海上舰队和严明的组织纪律,他们及时总结了航海贸易中频繁发生的共同海损等习惯规则,由此形成了公元前3世纪左右的《罗得海法》。《罗得海法》在地中海地区有极大权威性,曾在相当长一段时期内用来调整该地区的海上贸易。但《罗得海法》的文本并没有完整保存下来,有关内容仅散见于古罗马法学家的著作中。从这一点来讲,罗马人对海商法虽然没有原创性的贡献,但是古罗马法学家们在著作中对《罗得海法》所做的有关记载,明显地影响了海商法的成长。拜占庭帝国早期,皇帝查士丁尼下令把古罗马著名法学家的学说著作及法律解答汇总整理,于533年编成《学说汇纂》,其中收录了法学家们就“有关的海事活动”和“罗得弃货法”所做的记载和法理阐述。在《学说汇纂》中纳入这部分内容,既是查士丁尼地中海统治政策的需要,也是地中海贸易发展的必然结果。进入公元7世纪以来,阿拉伯为争夺地中海霸权而进行的扩张战争,并没有在多大程度上影响到拜占庭帝国的商业经济。在希拉克略王朝和伊苏里亚王朝的努力下,拜占庭帝国形成了繁忙的商业性海运系统,海上贸易活动非常活跃,君士坦丁堡成为当时世界的商业转运口岸。频繁的海上贸易往来不仅推动了拜占庭商业经济的发展,而且促进了拜占庭法律文化的进步。拜占庭与东地中海的商人们在海上贸易实践活动中逐渐形成了较为固定的商业习惯,将这些约定俗成的贸易惯例加以整理,汇编一部法典供人们在航行与经商时共同遵行已是势在必行,《罗得海商法》正是在这样的大背景之下应运而生。它是若干世纪以来地中海航海习惯和贸易经验不断积累的结果,在性质上属于习惯法的汇编。就其所处的时代而言,《罗得海商法》的内容可谓非常全面,如关于船舶与货物的规定,就涉及到船舶的租赁、船舶运输的定价、运费的支付、船舶的适航义务、船上物品的保管、船舶与货物的损失等诸多方面;关于海上贸易活动参与者的规定,则涉及到船上工作人员及其薪酬、船上工作人员的权利义务、乘客的权利义务、在船上或港口发生的盗窃与抢劫、海盗与斗殴等方面;除了这些基本的规定外,《罗得海商法》还确立或重申了一些典型的、重要的海商法律制度,如海事合伙与贷款、船舶碰撞与海难救助、共同海损与比例分摊等等。《罗得海商法》在中世纪的拜占庭与东地中海贸易活动中发挥了重要作用,它的出现结束了拜占庭帝国与东地中海一带的海上贸易无法可依的局面,使海上贸易活动有了更大的安全保障。《罗得海商法》通常被附在著名法典《埃克洛加》之后,作为帝国商业改革的措施而推广使用,其中的一些重要条款被吸收进了马其顿王朝的《帝国法典》之中。阿拉伯人在对拜占庭文化进行吸收和改造的过程中,也根据《罗得海商法》发展出了自己的海商法,于公元800—1050年间在西地中海地区广泛使用。不仅如此,比《罗得海商法》晚几个世纪的《阿玛斐表》、《康索拉多海法》、《奥列隆法典》、《威斯比海法》和《汉萨城镇条例》等众多海商法典也在很大程度上受到了《罗得海商法》的影响,对比一下法条内容后就会发现,其中的很多制度性规定如船舶弃货的程序、共同海损等等甚至是从《罗得海商法》照搬过来的,只不过是同一制度在不同的海商法典中做了不同的表述,或者进行了一定程度的改进。《罗得海商法》对中世纪的法律传统也产生了直间接的影响,这种影响体现在康孟达、灰脚法庭、商人法等领域。总之,《罗得海商法》上承古代两河流域和希腊等文明发达地区的海商法,在此基础上对查士丁尼《学说汇纂》中的海商法做了重要继承和发展,下启中世纪的《阿玛斐表》和《康索拉多海法》等著名海商法典。《罗得海商法》对保存和发展古代海商法律文明做了重要贡献,为后来的海商立法奠定了基础,它所确立或者重申的船舶碰撞、共同海损等方面的制度,影响从中世纪一直持续到现在。因此来说,《罗得海商法》具有承前启后的重要历史地位,是世界海商法史链条上不可或缺的重要一环。更多还原

【Abstract】 The Rhodian Sea-Law was formed in the 8th century A.D., whose name come from the Rhode Island in southeastern Mediterranean, and resulting in the Byzantine Empire under the broader context of the increasingly frequent trade in the Mediterranean. As a written code of law, it covers maritime loans, ship collision, general average, salvage and other maritime law systems. It is extremely valuable first-hand information in the studying of Byzantine history and the history of the world’s maritime law .The production of The Rhodian Sea-Law was not accidental, which developed from the inheritance of ancient maritime law civilization. Maritime law has a very long history.In about the Twentieth Century BC, the" Sumer Code" and other legal documents already had the seeds of maritime law. "Code of Hammurabi" had 10 related to maritime law terms, covering merchant rent, boatman responsibility, the responsibility of the two ships colliding and so on, be called the most comprehensive maritime law at that time of the world. While in the region of ancient Egypt and the Phoenician, maritime law code has not been found, but the shipbuilding and maritime industry were so developed that we believe the existence of maritime rules. It is said that the maritime law of Rhode Island resulted from maritime law of the Phoenician, we are looking forward to the results of new archaeological discoveries that can give a strong proof of this. As early as ancient Greece, the Rhode Island had been a trade center around the eastern Mediterranean. The business people of various ethnic groups and regions liked to settle disputes about sea trade on the Rhode Island. After a some time, a unique maritime legal culture formed gradually on Rhode Island. At the time, people of Rhode Island were masters of the seas and had a strong maritime fleet and strict organizational discipline. They promptly summed up average customary rules that occurred frequently in maritime trade, thus forming "Lex Rhodia" of the 3rd century BC. "Lex Rhodia" had a great authority in the Mediterranean region and used to adjust the region’s maritime trade for a fairly long period of time. But the text of "Lex Rhodia" had not preserved, the contents of which are only scattered in writings of the ancient Roman jurists. From this point on, although the Romans had no original contribution to the Maritime, it relevant records about "Lex Rhodia" in the writings of ancient Roman jurists which obviously influenced the growth of maritime law.Early Byzantine Emperor Justinian ordered the doctrine and legal answers of eminent ancient Roman jurists to be summarized and ordered, then compiled into "Digesta" in 533 years, a collection of jurists on the "maritime-related activities" and the "On ’Law Rhode disposable goods’". It was the need of policy to rule Mediterranean by Justinian, and it was the inevitable result of development of the Mediterranean trade.Since the 7th century, the expansion of the war that the Arabs fought over hegemony in the Mediterranean did not affect the the commercial economy of the Byzantine Empire to a great extent. With efforts of the Herakleios dynasty and the Isaurian dynasty, the Byzantine Empire formed a busy commercial shipping system, maritime trade which was very active, and Constantinople became the world’s business transshipment port. Frequent Byzantine sea trade not only promoted the economic development business, but also the progress of the Byzantine legal culture. Businessman of Byzantine and Eastern Mediterranean had gradually formed a habit of relatively fixed business practices in maritime trade practice. It was imperative to sort out these trade practices and to compile a code for people to comply with when navigating and doing business. It was in this macro-Background that the Rhodian Sea-Law emerged. The Rhodian Sea-Law was the result of sustained accumulation of navigation habits and trade experiences in the Mediterranean for centuries, whose nature was compilation of customary law.As far as that time is concerned, the content of the Rhodian Sea-Law could be described as very comprehensive, like the provisions on the ship, cargo, the involvement of the tenancy, the price of shipping, payment of freight, obligations of ship’s seaworthiness, storage of goods on board, the loss of ship and cargo, etc. The provisions on participants of maritime trade, involved the crew and their salaries, the rights and obligations of the crew, the rights and obligations of passengers, theft and robbery that happened on board or in a port, pirates and fighting, etc.; In addition to these basic provisions, The Rhodian Sea-Law also established or reaffirmed a number of typical maritime law systems, such as maritime partners and loans, ship collision and salvage, general average and the percentage share and so on.The Rhodian Sea-Law had played an important role in the trading activities of the Byzantine Empire and Eastern Mediterranean. Its appearance terminated the situation that there was no law to observe for the maritime trade of the Byzantine Empire and the Eastern Mediterranean. The activities of maritime trade had a greater security. The Rhodian Sea-Law was usually attached to the famous Code "Ecloga" ,and used widely as measures for business reform of the Byzantine Empire ,whose many important provisions had been absorbed into the Macedonian Dynasty "Imperial Code". During this time the Arab absorbed and reformed the Byzantine culture in the absorption and transformation process, they developed their own maritime laws according to The Rhodian Sea-Law, which were used widely in the years 800-1050 AD in the western Mediterranean region. More than this, many famous maritime codes later than the Rhodian Sea-Law, such as "Amalphitan Table", "The Rules of Oleron","The Consulate of the Sea", "Rules of Wisby" and "The Laws of the Hanse Towns", were influenced heavily by The Rhodian Sea-Law for a few centuries. Comparing the contents of the Laws, we find that many institutional provisions such as the procedure of abandoning cargo from the ship, general average and so on, even copied from The Rhodian Sea-Law. The provisions were expressed in different code only under the same system of maritime law or improved to a certain degree. The Rhodian Sea-Law also had a direct indirect effect to the medieval legal tradition, which reflected in Commenda, Court of Piepowder, law merchant and other fields.In short, the Rhodian Sea-Law inherited maritime law of ancient Mesopotamia and Greece which had developed civilizations, furthermore, it made an important inheritance and development of Maritime Law in the Justinian’s "Digesta", then the Rhodian Sea-Law enlightened famous Maritime Code of middle ages including "Amalphitan Table"and"The Consulate of the Sea" and so on. The Rhodian Sea-Law made important contributions in preserving and developing the ancient maritime law civilization, which laid the foundation for later maritime legislation. The system of maritime law what the Rhodian Sea-Law had established or reaffirmed, such as ship collision, general average and other aspects of the system, whose impact last from the Middle Ages until now. Thus, the Rhodian Sea-Law has important historical position of inheriting fine tradition and ushering in the future mission, which is indispensable and important part of history of the world’s maritime law.更多还原