【作者】 单爱明；

【导师】 李海；

【作者基本信息】 大连海事大学 ， 国际法学， 2008， 硕士

【摘要】 合同性质对合同的影响主要表现在合同的法律适用上,包括程序法、冲突法和实体法三个方面。因为本文仅涉及造船合同是买卖合同或是承揽合同,所以本文只对这两种合同在法律适用上的区别进行论述。对造船合同的性质,国外的观点有两种:买卖合同或是承揽合同。而我国学者似乎根据合同是否是有涉外合同,而将国内造船合同定性为承揽合同,将涉外造船合同定性为买卖合同。因此,有必要对造船合同性质深入研究。将造船合同定性为不同性质的合同的原因主要在于区分买卖合同和承揽合同的标准不同,虽然买卖合同与承揽合同有着明显的区别,但两者也存在许多相似之处,这给实践中从事法律实务的律师和法官办理案件带来了一定的困难。作者认为,有必要从买卖合同和承揽合同的本质属性中寻找两者的区分标准。根据合同特点,买卖合同是转移标的物所有权的合同,而承揽合同属提供劳务、交付劳动成果的合同。可见,标的物所有权是否发生转移正是买卖合同和承揽合同的本质区别,应以此作为区分标准。然而要判断造船合同下船舶所有权是否转移,首先需要明确所有权如何产生、产生时权利归属等问题。这些问题需要我们在物权法理论中寻求答案。将物权变动理论运用到船舶建造之中,本文得出船舶所有权是通过加工行为原始产生,原始取得该权利的主体是造船厂。所以为实现造船合同的目的,需要造船厂将船舶所有权转移给购船者。按照所有权是否转移的标准,本文得出造船合同是买卖合同的结论。由于船舶建造不可避免地会涉及到建造中的船舶的权利归属,所以本文还对与此有关的部分问题进行了简要的论述。更多还原

【Abstract】 The effect of the legal nature of a contract is mainly reflecting the application of law onto the contract, including procedure law, conflict law and substantive law. Focusing on the difference between sales contracts and work contracts, this dissertation analyses the different applicable laws of the two contracts. As regard the legal nature of shipbuilding contract, there are mainly two kind of divergent views in foreign countries, i.e. sales contract and work contracts. However, in China a shipbuilding contract, if without any foreign element, will be characterized as a work contract, but as a sales contract, if the contract with certain foreign element. So it is necessary to study further the legal nature of shipbuilding contract in China.The reason that a shipbuilding contract is characterized differently, i.e. a sales contract or work contract, is that varied criteria are adopted in judging the legal nature of these two contracts. There are obvious differences between sales contracts and work contracts, although these two contracts share some common features, that brings certain confusion to lawyers and judges in practice. The author is trying to seek the right answer from the essence of the two contracts. According to their natures, a sales contract is a contract whereby the seller transfers ownership to the buyer, while a work contracts is a contract whereby the contractor completes certain work and delivers the achievement to the other party of the contract. This dissertation takes the view that the transfer of ownership is the essential difference and distinguishing criteria.In order to judge whether the ownership of the vessel under the shipbuilding contract has been transferred or not, it should be first determined how the ownership of the vessel creates, and who could acquire the property right when it is created, ect. The answers to these questions could be found in the theory of the property law. After the study of this theory, the author is in the point that the shipbuilder originally acquires the ownership of the vessel by processing acts. Therefore ownership must be transferred from the shipbuilder to the other party. Basing on the distinguishing criteria between sales contracts and work contracts, the author has come to the conclusion that shipbuilding contracts should be categorized as sales contract. For reasons that any study on shipbuilding contract would inevitably relates to the concept of ship under construction, so the issues in relation to ship under construction are also analyzed.更多还原