提单法律性质研究—“占有凭证”说
发布时间：2018-07-31 18:43
【摘要】：鉴于海上货物运输的国际性和调整对象的特殊性,提单的有关法律问题产生了国际统一的需求,但关于提单货物代表功能的法律规范却难以达成国际统一基于我国的法律体系下如何理解与适用提单货物代表功能的法律实践需要,以及《联合国全程或部分海上国际货物运输合同公约》(以下简称《鹿特丹规则》)若对我国生效,其有关提单货物代表功能的规则如何适用于我国法律体系内的思考,本文对我国现行法下提单法律性质的定位进行了再审视。 第一章介绍了国内外关于提单性质的学说和立法,并在比较法理论的基础上,对相关的立法和学说进行了比较研究,以期在宏观上建立对于提单法律性质的认识,并在该认识的基础上得出了审视我国现行法下提单性质时应遵从的原则。 第二章对占有制度原理,包括占有的性质、构成、让与、效力以及保护等各个方面进行了理论梳理,并立足于现行法之占有制度进行了法律适用上的考量。由此,通过对占有理论和现行法适用的分析为下文之论证打下了理论基础。 第三章立足于占有制度,通过引入归纳论证法和演绎论证法两种论证方法,从动态入手对提单在国际贸易、国际金融以及国际海上货物运输领域所体现出的提单货物代表功能进行了分析与整合,对我国现行法下提单性质之“占有凭证”说进行了整体严格的论证。 第四章则立足于提单性质之“占有凭证”说,对提单运输下货物交付与提取、运费支付、提单签发、货物控制权以及权利转让等几项提单实践中的法律问题进行了理论和实践层面的再思考,并进一步论证了“占有凭证”说与提单实践的相合性。 本文始于对现有各学说的研究,基于现行法下占有制度之视角,立足于国际贸易、金融和海上货物运输领域可流通提单的法律性质问题,提出提单性质为“占有凭证”这一论点,并通过分析占有理论与提单实践的相合性来论证其合理性,进而将其应用于解决海上货物运输领域提单理论与实践问题。
[Abstract]:In view of the international character of the carriage of goods by sea and the particularity of the object of adjustment, the legal issues related to the bill of lading have created a demand for international unity, However, it is difficult for the legal norms on the representative function of bill of lading to reach the international unification. How to understand and apply the function of the bill of lading under the legal system of our country is needed in the legal practice. And if the United Nations Convention on contracts for the International Carriage of goods wholly or partly by Sea (hereinafter referred to as the Rotterdam rules) comes into force for our country, how its rules relating to the representative function of goods on bills of lading apply to the legal system of our country, This paper reexamines the legal nature of bill of lading under the current law of our country. The first chapter introduces the theory and legislation about the nature of bill of lading at home and abroad, and on the basis of comparative law theory, makes a comparative study on the relevant legislation and doctrine, in order to establish a macroscopic understanding of the legal nature of bill of lading. On the basis of this understanding, the principles should be followed when examining the nature of bill of lading under the current law of our country. In the second chapter, the theory of possession system, including the nature, constitution, transfer, effectiveness and protection of possession system is analyzed theoretically, and the application of the law is considered based on the possession system of current law. Therefore, through the analysis of the theory of possession and the application of the current law, the theoretical foundation is laid for the following argument. The third chapter is based on the possession system, through the introduction of inductive argumentation and deductive argumentation, from the dynamic point of view of the bill of lading in international trade, This paper analyzes and integrates the representative function of bill of lading in the field of international finance and international carriage of goods by sea, and gives a strict demonstration of the nature of the bill of lading under the current law of our country. The fourth chapter is based on the nature of the bill of lading "possession" theory, the delivery and extraction of goods under the bill of lading transport, freight payment, bill of lading issued, The legal problems in the practice of bill of lading, such as the right of control of goods and the transfer of rights, are reconsidered in theory and practice, and the consistency between the theory of "possession certificate" and the practice of bill of lading is further demonstrated. This paper begins with the study of the existing theories, based on the perspective of the possession system under the current law, and based on the legal nature of negotiable bills of lading in the fields of international trade, finance and carriage of goods by sea. This paper puts forward the argument that the nature of bill of lading is "proof of possession", and proves its rationality by analyzing the coincidence between possession theory and practice of bill of lading, and then applies it to solve the theoretical and practical problems of bill of lading in the field of carriage of goods by sea.
【学位授予单位】：大连海事大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D996.19
本文编号：2156489
[Abstract]:In view of the international character of the carriage of goods by sea and the particularity of the object of adjustment, the legal issues related to the bill of lading have created a demand for international unity, However, it is difficult for the legal norms on the representative function of bill of lading to reach the international unification. How to understand and apply the function of the bill of lading under the legal system of our country is needed in the legal practice. And if the United Nations Convention on contracts for the International Carriage of goods wholly or partly by Sea (hereinafter referred to as the Rotterdam rules) comes into force for our country, how its rules relating to the representative function of goods on bills of lading apply to the legal system of our country, This paper reexamines the legal nature of bill of lading under the current law of our country. The first chapter introduces the theory and legislation about the nature of bill of lading at home and abroad, and on the basis of comparative law theory, makes a comparative study on the relevant legislation and doctrine, in order to establish a macroscopic understanding of the legal nature of bill of lading. On the basis of this understanding, the principles should be followed when examining the nature of bill of lading under the current law of our country. In the second chapter, the theory of possession system, including the nature, constitution, transfer, effectiveness and protection of possession system is analyzed theoretically, and the application of the law is considered based on the possession system of current law. Therefore, through the analysis of the theory of possession and the application of the current law, the theoretical foundation is laid for the following argument. The third chapter is based on the possession system, through the introduction of inductive argumentation and deductive argumentation, from the dynamic point of view of the bill of lading in international trade, This paper analyzes and integrates the representative function of bill of lading in the field of international finance and international carriage of goods by sea, and gives a strict demonstration of the nature of the bill of lading under the current law of our country. The fourth chapter is based on the nature of the bill of lading "possession" theory, the delivery and extraction of goods under the bill of lading transport, freight payment, bill of lading issued, The legal problems in the practice of bill of lading, such as the right of control of goods and the transfer of rights, are reconsidered in theory and practice, and the consistency between the theory of "possession certificate" and the practice of bill of lading is further demonstrated. This paper begins with the study of the existing theories, based on the perspective of the possession system under the current law, and based on the legal nature of negotiable bills of lading in the fields of international trade, finance and carriage of goods by sea. This paper puts forward the argument that the nature of bill of lading is "proof of possession", and proves its rationality by analyzing the coincidence between possession theory and practice of bill of lading, and then applies it to solve the theoretical and practical problems of bill of lading in the field of carriage of goods by sea.
【学位授予单位】：大连海事大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D996.19
【引证文献】
相关硕士学位论文 前1条
1 裘丹枫;电放法律问题研究[D];大连海事大学;2013年
，本文编号：2156489
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