提单的合同法律属性探究
发布时间：2018-08-03 12:45
【摘要】： 在国际货物买卖中,提单是被广泛使用的单据,其便利和快捷使其能极大的促进国际贸易的迅速发展。它从产生至今历经了漫长的岁月,它使国际运输中承、托双方权利义务的明确及纠纷的解决有章可循。然而,关于提单的性质尤其是提单与合同的关系,许多学者或专著要么模棱两可,要么语焉不详,要么自相矛盾,没有明确、清楚、详尽的论证。本文从学术探讨的精神出发,拟对提单与合同的关系作一明确的界定。 本文采用理论联系实际的方法,并紧密结合当今提单在世界与中国发展的现实情况,探讨了提单的合同法律属性。 本文共分四部分。 第一部分中,通过对提单的历史考察,提炼出了提单的形成发展纲要。提单产生后其功能总是随实践的发展不断的演化,它经历了早期运输合同的附件及主要条款的概括、货物收据、运输合同条款证明及物权凭证几大功能发展阶段,终于发展至以单证交易为基石的现代国际贸易。 第二部分追溯了国际国内中最有影响的提单立法。规范提单的国际立法当属三大国际公约：《海牙规则》、《维斯比规则》、《汉堡规则》。而规制提单的国内法最具代表性的是英国的《1855年提单法》、《1992年海上货物运输法》,美国的《哈特法》、《1916年提单法》。而在我国,海商法对提单制度规定得相当简单。所以,2001年7月19日在宁波召开的全国海事法院院长座谈会后以最高人民法院的名义下发的《2001年全国海事法院院长座谈会纪要》和最高人民法院民事审判第四庭在2004年4月8日发布的《涉外商事海事审判实务问题解答》中对提单的合同属性作了明确规定。 第三部分从提单的构成要素、法律关系、运行机制等方面对提单属性进行了初步的法理分析。提单的构成要素有承运人、托运人、货物；提单的法律关系则与其他法律关系一样具有主体、客体、内容(主体之间的法律权利与义务)；提单的运行机制包括提单的签发流程、转让机制、提单纠纷的解决机制(违约之诉、侵权之诉)：提单的法律效力主要包括其物权效力、债权效力。 第四部分,根据前面对提单的分析,进一步论证提单为什么具有合同属性。从民法角度看,它与合同的成立要件是一致的：二者均为双方的法律行为；提单与合同均是双方意思表示一致的产物；提单也同样具有合同成立应具备的要约与承诺阶段；提单与合同均为债发生的原因。然后论述提单的合同属性认定有重要的意义：即对提单持有人诉权的确定。最后确定我们应该以发展的而不是以僵化的眼光去看待提单,事实上提单也总是在不断的发展、变化之中。
[Abstract]:Bill of lading is a widely used document in the international sale of goods, which can greatly promote the rapid development of international trade. It has gone through a long period of time since its emergence. It makes international transportation clear the rights and obligations of both parties and the settlement of disputes. However, on the nature of bill of lading, especially the relationship between bill of lading and contract, many scholars or monographs are either ambiguous, vague or contradictory, without clear, clear and detailed argument. Based on the spirit of academic discussion, this paper intends to make a clear definition of the relationship between bill of lading and contract. This paper adopts the method of combining theory with practice, and discusses the contract legal attribute of bill of lading according to the reality of the development of bill of lading in the world and China. This paper is divided into four parts. In the first part, through the historical investigation of bill of lading, the formation and development outline of bill of lading is abstracted. The function of bill of lading always evolves with the development of practice. It has gone through several major functional stages of the early contract of carriage, such as the summary of the appendages and main clauses of the contract of carriage, the receipt of goods, the proof of the terms of the contract of carriage and the proof of title. Finally, the development of modern international trade based on document transactions. The second part traces the most influential bill of lading legislation at home and abroad. The international legislation regulating bill of lading should belong to three international conventions: the Hague rules, the Visby rules and the Hamburg rules. The most representative of the domestic laws governing bills of lading are the British Bill of Lading Act of 1855, the Maritime Carriage of goods Act 1992, the American Bill of Lading Act and the Bill of Lading Act of 1916. But in our country, the maritime law to the bill of lading system stipulation is quite simple. Therefore, after the forum of the presidents of the national maritime courts held in Ningbo on 19 July 2001, the Summary of the 2001 Symposium of the Presidents of the National Maritime Courts and the fourth Chamber of Civil Justice of the Supreme people's Court were issued in the name of the Supreme people's Court. The contract attribute of bill of lading is clearly stipulated in the practical questions of Foreign Commercial Maritime trial issued on April 8, 2004. The third part makes a preliminary legal analysis on the property of bill of lading from the aspects of the elements of bill of lading, legal relationship and operation mechanism. The constituent elements of bill of lading are carrier, shipper, goods; the legal relationship of bill of lading has subject, object and content (legal rights and obligations between subjects) as other legal relations. The operating mechanism of bill of lading includes the process of issuing bill of lading, the mechanism of transfer, the settlement mechanism of bill of lading dispute (the action of breach of contract, the action of tort): the legal effect of bill of lading mainly includes its real right effect and creditor's right effect. The fourth part, according to the previous analysis of the bill of lading, further demonstrates why the bill of lading has contractual attributes. From the point of view of civil law, it is consistent with the requirements of the establishment of the contract: both are the legal acts of both parties; the bill of lading and the contract are both the products of the agreement of intention between the two parties; the bill of lading also has the stage of offer and acceptance that the contract should have. Both the bill of lading and the contract are the cause of the debt. Then it discusses the contract attribute of bill of lading has important significance: namely to determine the right of action of the holder of bill of lading. Finally, we should look at the bill of lading in a developing rather than rigid way. In fact, the bill of lading is always developing and changing.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2009
【分类号】：D996.1
本文编号：2161789
[Abstract]:Bill of lading is a widely used document in the international sale of goods, which can greatly promote the rapid development of international trade. It has gone through a long period of time since its emergence. It makes international transportation clear the rights and obligations of both parties and the settlement of disputes. However, on the nature of bill of lading, especially the relationship between bill of lading and contract, many scholars or monographs are either ambiguous, vague or contradictory, without clear, clear and detailed argument. Based on the spirit of academic discussion, this paper intends to make a clear definition of the relationship between bill of lading and contract. This paper adopts the method of combining theory with practice, and discusses the contract legal attribute of bill of lading according to the reality of the development of bill of lading in the world and China. This paper is divided into four parts. In the first part, through the historical investigation of bill of lading, the formation and development outline of bill of lading is abstracted. The function of bill of lading always evolves with the development of practice. It has gone through several major functional stages of the early contract of carriage, such as the summary of the appendages and main clauses of the contract of carriage, the receipt of goods, the proof of the terms of the contract of carriage and the proof of title. Finally, the development of modern international trade based on document transactions. The second part traces the most influential bill of lading legislation at home and abroad. The international legislation regulating bill of lading should belong to three international conventions: the Hague rules, the Visby rules and the Hamburg rules. The most representative of the domestic laws governing bills of lading are the British Bill of Lading Act of 1855, the Maritime Carriage of goods Act 1992, the American Bill of Lading Act and the Bill of Lading Act of 1916. But in our country, the maritime law to the bill of lading system stipulation is quite simple. Therefore, after the forum of the presidents of the national maritime courts held in Ningbo on 19 July 2001, the Summary of the 2001 Symposium of the Presidents of the National Maritime Courts and the fourth Chamber of Civil Justice of the Supreme people's Court were issued in the name of the Supreme people's Court. The contract attribute of bill of lading is clearly stipulated in the practical questions of Foreign Commercial Maritime trial issued on April 8, 2004. The third part makes a preliminary legal analysis on the property of bill of lading from the aspects of the elements of bill of lading, legal relationship and operation mechanism. The constituent elements of bill of lading are carrier, shipper, goods; the legal relationship of bill of lading has subject, object and content (legal rights and obligations between subjects) as other legal relations. The operating mechanism of bill of lading includes the process of issuing bill of lading, the mechanism of transfer, the settlement mechanism of bill of lading dispute (the action of breach of contract, the action of tort): the legal effect of bill of lading mainly includes its real right effect and creditor's right effect. The fourth part, according to the previous analysis of the bill of lading, further demonstrates why the bill of lading has contractual attributes. From the point of view of civil law, it is consistent with the requirements of the establishment of the contract: both are the legal acts of both parties; the bill of lading and the contract are both the products of the agreement of intention between the two parties; the bill of lading also has the stage of offer and acceptance that the contract should have. Both the bill of lading and the contract are the cause of the debt. Then it discusses the contract attribute of bill of lading has important significance: namely to determine the right of action of the holder of bill of lading. Finally, we should look at the bill of lading in a developing rather than rigid way. In fact, the bill of lading is always developing and changing.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2009
【分类号】：D996.1
【引证文献】
相关硕士学位论文 前2条
1 佟思进;国际海上货物运输承运人责任制度演变研究[D];华东政法大学;2013年
2 黄晓鸽;海商法中的承运人责任制度研究[D];华东政法大学;2013年
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