중국에 대한 국제항공 운송법률 적용 시 쟁점 연구

The biggest challenge facing China's civil aviation following China's accession to the WTO is the issue of airspace opening. The development of the WTO rules for trade in services should also be properly harmonized with the application of the laws of international air transport and relevant domestic laws and regulations. Due to the limit of liability of mainland civil air carriers, China distinguishes between international air transport and domestic air transport, and sets different limits for compensation. Accordingly, the location of liability for civil air carriers varies depending on whether the transportation is international air transportation, and the amount of liability limits is also very different. In Taiwan, with regard to the limit of liability of civil air carriers, there is no special difference between international air transport and domestic air transport, uniformly and equally. Therefore, when negotiating routes between China and Taiwan, routes between the two regions should be established as international air transportation or domestic air transportation, and when negotiating routes for special areas, it should be decided as the main agenda first. Currently, the way to solve this problem is for the Chinese and Taiwanese air transport authorities to prepare a legal document for international air transport negotiations. In such consultations, the liability system of international air transport carriers should be established and the reasons for exemption or limitation of liability should be clearly defined. More importantly, it is desirable to prevent unnecessary disputes in advance by appropriately intervening in the calculation of the limit of compensation for international air transport and domestic air transport by reasonably raising the limit of compensation for Taiwan passengers or shippers. do. Confirmation of insurance coverage for the limit of liability of Chinese and Taiwanese airlines as a compulsory rule must also be pursued. The purpose of this is to ensure that aircraft passengers and shippers can obtain adequate compensation in case of a dispute, and also to prevent Chinese airlines from paying excessively high compensation amounts according to insurance theory when liability for damages occurs. there will be. The following legal conflicts exist between the Civil Aviation Law of China and the International Aviation Convention. First, the affirmation of the legality of electronic contracts in the 1999 「Contract Act」 and the absence of electronic transport documents under the 「Civil Aviation Act」 of 1995. Second, China did not fully implement the principle of freedom of contract in the Civil Aviation Act of 1995. Third, China's 1995 Civil Aviation Act was in conflict with the 1999 Montreal Convention. In relation to the time and point at which the electronic contract for international air transport is established, the point where the effect is recognized becomes the point where the contract is concluded. When a contract is concluded by adopting the data electronic document format, the recipient's main business location becomes the point at which the contract was concluded. If there is no principal place of business, the place of habitual residence shall be the point at which the contract is concluded. If the parties stipulate separately, the relevant agreement shall apply. As a party to the 1999 Montreal Convention, China's Civil Aviation Law must comply with the provisions of the Convention. It is also desirable to improve the Civil Aviation Law in accordance with the spirit of China's "Contract Law". China's Civil Aviation Law of 1995 should refer to the legislative spirit of China's 「Contract Law」 as a special law for air transport, and further clarify the rules for issuance of air tickets and procedures to confirm the legitimacy of electronic transport documents and promote the sound development of aviation e-commerce. have to secure, In general, statements relating to the application of treaties in international air transport tickets are regarded as agreements of both parties, and this is also the case in China. The problem is that Chinese domestic airlines still recognize the Warsaw Pact as the international treaty that they apply to their international air ticket statements. This could make the legal status of the Montreal Convention, which has already taken effect in China, a very difficult situation. Compared with the Warsaw Convention and other treaties and the Hague Protocol, the Montreal Convention has the status of priority application. In fact, China's civil aviation failed to implement the above points in the international shipping contract. There is an issue as to whether the limitation of liability related to the material interests of the Chinese domestic compensation right holder is enacted by the Civil Aviation Administration, which oversees civil airlines, or the China Ministry of Transport, which oversees the Shanghai Transport Company. Article 8 of the Legislative Law enacted and implemented by China in July 2000 clearly stipulates that only the National People's Congress and the Standing Committee of the National People's Congress can enact laws. An excessively low amount of compensation will result in serious infringement of the rights of domestic claimants for compensation. This is the reason why a more reasonable compensation system should be established.