- 期刊
兩岸海難救助之古海法考證－以清末的船難救護章程與現行法之比較為例
Research on the ancient salvage laws in Taiwan and China-Taking the comparison of salvage regulations in the late Qing Dynasty and now as an example
摘要
關於海難救助之立法，不僅須提供足夠誘因，鼓勵人民對遇難船舶、貨物或人命進行救助，尚須防止救助人將獲救財產占為己有，故在誘因上須兼顧兩者，除鼓勵救助外，尚須禁絕海難發財或見死不救，清末中國實施《保護中外船隻遭風遇險章程》，成為第一個全國性之船難救護章程，爾後因效力不彰，另酌議《山東沿海保護失事船隻章程》，並在台灣公布實施了《救護章程》，本文對此等章程規定加以研究，並與兩岸現行海商法進行比較，海難救助之立法邏輯須具備更高的效率要求，大幅提高獎賞給付，加強救助誘因，章程具有濃厚的賞罰意味，清楚明定救助人與被救助人間之權利義務，以國家公權力介入防止搶奪與救護任務的監督執行，救護指揮權由遇難船船主執行，所有人均須聽其指揮，有助釐清救護與搶奪行為，降低救護成本，透過清末海難救護章程之古海法考證，研擬出更適合於兩岸民情的海難救助立法。
並列摘要
The legislation on salvage law must not only provide the sufficient incentive to encourage people to rescue ships, goods and human lives, but also prevent salvors from taking the saved property for their own sake. Therefore, we must take two incentives into account for the legislation. In addition to encouraging rescue, it has to forbid to making a fortune or doing nothing to save. In the late Qing Dynasty, ＂the Regulations on the Protection of Chinese and Foreign Shipwrecks from Wind and Danger＂ has been implemented and become the first national salvage regulation. Due to its ineffectiveness, ＂the Regulations on the Protection of Shipwrecks in Shandong Coastal Areas＂ was discussed and implemented. Moreover, ＂the Salvage Regulations＂ would be brought into effect in Taiwan. This article makes research to these regulations and compares them with the current maritime law in Taiwan and China. The legislative logic of salvage laws must needs higher efficiency requirements. Rewards should be greatly increased to improve incentives for salvage operation. The regulations need to offer the reward and punishment strongly, and define the rights and obligations of the salvors and the rescued clearly. It prevents the piracy and monitors the salvage operation by the government. The rescue command is carried out by the shipwreck owner, and everyone must be obeyed to him. It would help clarify the salvage operation and piracy action. Meanwhile, it reduces the salvage cost. Through the research of ancient maritime law, the salvage regulations in the late Qing Dynasty, we can try to make more suitable salvage laws in Taiwan and China.