仓单法律性质研究
发布时间：2018-08-29 18:45
【摘要】：从作用单一的收据到可以流通的金融工具,仓单在贸易环节与流通领域中的作用越来越多样化,也使其成为了重要的法律规制对象。2014年的“青岛港仓单信用证诈骗案”暴露出一系列我国仓单法律与制度体系的漏洞及我国仓单市场所隐藏的风险。为了更全面的了解仓单,为了使法律对仓单市场的规制可以促进仓单的流通及仓单市场更加健康的发展,本文从“青岛港仓单信用证诈骗案”谈起,全面分析仓单的法律性质,从比较法的角度主要以借鉴及对比美国关于仓单的立法及学理经验,通过结合案例与学理,最终从立法及交易层面为我国仓单规制提出建议。本文正文分为三部分。第一部分为仓单的概述,从仓单的界定、分类与交易流程、历史发展及概念区分四个方面全面分析仓单的基础性质。其中着重阐述了界定仓单过程中对仓单所有权凭证性质的认识;仓单的指示仓单、记名仓单和不记名仓单的分类及不同种类仓单的不同交易流程;并从历史的角度出发,探寻仓单发展历史的同时,着重探讨随历史发展,仓单在市场中功能的变化。仓单从只是具有单纯证明作用的收据,发展成为表彰仓储物所有权的物权凭证,再到如今进入流通领域,并活跃于现货交易市场上的有价证券。第二部分立足我国仓单的本土性,结合比较法,尤其是具有代表性的美国立法例,通过探讨我国仓单的有价证券性质,全面的对我国仓单的证券性质展开讨论。这一部分立足于仓单有价证券的属性,论述仓单的债权性物权证券性质,及仓单要式的、指示的、背书的、不完全文义的、无因的和缴还的有价证券性质。最后一部分再次对引用案例进行分析,结合仓单的法律性质,从立法及交易层面分析我国仓单法律及制度方面的不足,并为我国仓单规制提出建议。首先,立法上规范仓单的种类与转让的生效要件。其次,交易市场层面上,建立仓单网络信息平台,完善企业信用评级制度。笔者希望,通过对仓单法律性质的研究,着眼于实务发展的实质,通过法律来塑造我国仓单市场的发展,为我国仓单市场的监管与发展尽绵薄之力。
[Abstract]:From single receipts to negotiable financial instruments, warehouse receipts are becoming more and more diverse in the areas of trade and circulation. The fraud case of warehouse receipt letter of credit in Qingdao Port in 2014 exposed a series of loopholes in our country's warehouse receipt law and system and the hidden risks in our warehouse receipt market. In order to understand warehouse receipt more comprehensively, in order to make the regulation of warehouse receipt market by law promote the circulation of warehouse receipt and the healthy development of warehouse receipt market, this paper starts from "the fraud case of warehouse receipt letter of credit in Qingdao Port", and analyzes the legal nature of warehouse receipt comprehensively. From the point of view of comparative law, this paper draws lessons from and compares the legislation and theoretical experience of the United States on warehouse receipts, and finally puts forward some suggestions for the regulation of warehouse receipts in China from the aspects of legislation and transaction by combining cases and theories. The text of this paper is divided into three parts. The first part is an overview of warehouse receipts, from the definition of warehouse receipts, classification and trading processes, historical development and conceptual differentiation of warehouse receipts from four aspects of comprehensive analysis of the basic nature of warehouse receipts. The paper mainly expounds the understanding of the nature of warehouse receipt ownership certificate in the process of defining warehouse receipt, the classification of indicative warehouse receipt, registered warehouse receipt and bearer warehouse receipt, and the different transaction flow of different kinds of warehouse receipt, and starts from the historical point of view. In order to explore the history of warehouse receipt development, this paper focuses on the change of warehouse receipt function in the market. From a receipt with simple proof, warehouse receipt has developed into a document of real right commending the ownership of storage property, and now it has entered the field of circulation, and is active in the spot trading market of marketable securities. The second part is based on the nativeness of warehouse receipts in our country, combined with comparative law, especially the representative legislation of the United States, through the discussion of the nature of securities of warehouse receipts in China, the paper comprehensively discusses the nature of securities of warehouse receipts in China. This part is based on the property of warehouse receipt securities, and discusses the nature of real right securities of warehouse receipt, and the nature of securities of form of warehouse receipt, direction, endorsement, incomplete text, no cause and payment. The last part analyzes the citation case again, combining with the legal nature of warehouse receipt, analyzes the deficiency of our country's warehouse receipt law and system from the aspect of legislation and transaction, and puts forward some suggestions for the regulation of warehouse receipt in our country. First of all, the legislative regulation of warehouse receipts and transfer of the effective requirements. Secondly, the trading market level, establish warehouse receipt network information platform, improve enterprise credit rating system. The author hopes that through the study of the legal nature of warehouse receipt, focusing on the essence of the development of practice, the development of the warehouse receipt market in China can be shaped by law, and the supervision and development of the warehouse receipt market in our country will do its utmost.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：D922.28
[Abstract]:From single receipts to negotiable financial instruments, warehouse receipts are becoming more and more diverse in the areas of trade and circulation. The fraud case of warehouse receipt letter of credit in Qingdao Port in 2014 exposed a series of loopholes in our country's warehouse receipt law and system and the hidden risks in our warehouse receipt market. In order to understand warehouse receipt more comprehensively, in order to make the regulation of warehouse receipt market by law promote the circulation of warehouse receipt and the healthy development of warehouse receipt market, this paper starts from "the fraud case of warehouse receipt letter of credit in Qingdao Port", and analyzes the legal nature of warehouse receipt comprehensively. From the point of view of comparative law, this paper draws lessons from and compares the legislation and theoretical experience of the United States on warehouse receipts, and finally puts forward some suggestions for the regulation of warehouse receipts in China from the aspects of legislation and transaction by combining cases and theories. The text of this paper is divided into three parts. The first part is an overview of warehouse receipts, from the definition of warehouse receipts, classification and trading processes, historical development and conceptual differentiation of warehouse receipts from four aspects of comprehensive analysis of the basic nature of warehouse receipts. The paper mainly expounds the understanding of the nature of warehouse receipt ownership certificate in the process of defining warehouse receipt, the classification of indicative warehouse receipt, registered warehouse receipt and bearer warehouse receipt, and the different transaction flow of different kinds of warehouse receipt, and starts from the historical point of view. In order to explore the history of warehouse receipt development, this paper focuses on the change of warehouse receipt function in the market. From a receipt with simple proof, warehouse receipt has developed into a document of real right commending the ownership of storage property, and now it has entered the field of circulation, and is active in the spot trading market of marketable securities. The second part is based on the nativeness of warehouse receipts in our country, combined with comparative law, especially the representative legislation of the United States, through the discussion of the nature of securities of warehouse receipts in China, the paper comprehensively discusses the nature of securities of warehouse receipts in China. This part is based on the property of warehouse receipt securities, and discusses the nature of real right securities of warehouse receipt, and the nature of securities of form of warehouse receipt, direction, endorsement, incomplete text, no cause and payment. The last part analyzes the citation case again, combining with the legal nature of warehouse receipt, analyzes the deficiency of our country's warehouse receipt law and system from the aspect of legislation and transaction, and puts forward some suggestions for the regulation of warehouse receipt in our country. First of all, the legislative regulation of warehouse receipts and transfer of the effective requirements. Secondly, the trading market level, establish warehouse receipt network information platform, improve enterprise credit rating system. The author hopes that through the study of the legal nature of warehouse receipt, focusing on the essence of the development of practice, the development of the warehouse receipt market in China can be shaped by law, and the supervision and development of the warehouse receipt market in our country will do its utmost.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：D922.28
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