论喜马拉雅条款的沿革及理论基础——兼评UNCITRAL《运输法草案》下的海上履约方

喜马拉雅条款的发展经历了三个不同阶段.UNCITRAL<运输法草案>中提出的海上履约方是对该条款的新发展.这一阶段,该条款的重要特征是:第一,适用范围大大地扩展了;第二,已经由合同条款演变成法定条款,其效力具有明确性和稳定性的特点; 第三,不仅赋予权利人以消极的权利,同时还赋予积极的权利,以及相应的义务.该条款的理论基础有代理理论、为第三方设定利益理论、委托理论.自从国际公约和各国国内法吸纳该条款后,上述理论即为法定理论所取代.

A study on the development and theoretical basis of Himalaya Clause--review the maritime performing party under UNCITRAL Transport Law (draft)

Himalaya Clause has gone through three difference stages during its developing. The maritime performing party put out from the UNCITRAL Transport Law (draft) is a new development to the clause and the significant features of this stage are as follow:The first, the applicable scope of this clause is being extended;the second, Himalaya Clause has changed from a contract clause to a legal clause and has the features of the explicit and steady in the validity;the third, Himalaya Clause not only give a negative right but also impose a positive right and relevant obligations.There are the agency theory,beneficial theory for third party and entrust theory in the theoretical basis of Himalaya Clause and which are superseded by the legal theory since the Himalaya Clause has been admitted into the conventions and domestic laws.