提单与国际贸易中货物所有权转移的关系
发布时间：2018-11-11 00:42
【摘要】： 对于提单与货物所有权转移的关系，应把所有权转移的一般理论与提单的法律制度有机结合起来进行分析。而且由于各国的法律制度存在差别，对于这一问题，应具体分析，不可一概而论。单纯从海商法或民法的角度来讨论这一问题，必将由于方法论上的缺陷，而导致结论的片面性。 提单对货物所有权转移的影响，在英美法系与大陆法系各不相同。即使在各个法系内部，也存在较大的国别差异。总体来说，在英国，通常可通过提单推测当事人转移所有权的意图。在美国，提单对于分析货物的无条件划拨具有一定作用，但对提单的处分方式只影响货物的担保权益，而不影响货物所有权的转移。在法国，提单对货物所有权的转移基本上没有影响。在以德国为代表的国家，提单的交付一般与货物所有权的转移同步。我国的情形与德国相似。 在国际贸易结算中，银行占有提单享有的只是担保权益，而不取得货物的所有权。但银行占有提单时，，货物的所有权属于卖方还是买方，要根据结算方式与具体情况进行判断。 通过电子提单转移货物的所有权首先面临电子商务所产生的一般法律问题，其次是电子提单能否完全实现纸面提单的功能这一特殊法律问题。目前，国际上在这方面已有一定的法律和实践，但问题的解决是一个逐步的过程。 我国应对提单交付的法律效果做出明确的法律规定，以利于对国际贸易提供确定的法律指引，并与海商法相互照应。同时，我国应把握时机，对电子提单问题进行立法，以适应和促进我国对外贸易的发展。
[Abstract]:As to the relationship between bill of lading and transfer of ownership of goods, the general theory of transfer of ownership should be combined with the legal system of bill of lading. Moreover, because of the differences in the legal systems of various countries, this problem should be analyzed concretely and not generalizably. Simply discussing this problem from the point of view of maritime law or civil law is bound to lead to one-sidedness of conclusion due to methodological defects. The influence of bill of lading on the transfer of title of goods is different in common law system and civil law system. Even within the various legal systems, there are large differences between countries. Generally speaking, in the United Kingdom, the intention of the parties to transfer title can usually be inferred from bills of lading. In the United States, bills of lading play a certain role in analyzing the unconditional transfer of goods, but the disposition of bills of lading only affects the security interests of the goods, not the transfer of ownership of the goods. In France, bills of lading have little effect on the transfer of title to the goods. In Germany, the delivery of bills of lading is generally synchronized with the transfer of title to the goods. The situation in our country is similar to that in Germany. In international trade settlement, the bank has only the security interest in the bill of lading, but not the ownership of the goods. But when the bank has the bill of lading, the ownership of the goods belongs to the seller or the buyer. The transfer of the ownership of goods through electronic bills of lading first faces the general legal problems arising from electronic commerce, followed by the special legal question of whether electronic bills of lading can fully realize the functions of paper bills of lading. At present, there are some laws and practices in this field, but the solution of the problem is a gradual process. China should make clear legal provisions on the legal effect of bill of lading delivery in order to provide definite legal guidance for international trade and to look after each other with maritime law. At the same time, China should seize the opportunity to legislate the electronic bill of lading in order to adapt and promote the development of China's foreign trade.
【学位授予单位】：苏州大学
【学位级别】：硕士
【学位授予年份】：2003
【分类号】：D996
本文编号：2324026
[Abstract]:As to the relationship between bill of lading and transfer of ownership of goods, the general theory of transfer of ownership should be combined with the legal system of bill of lading. Moreover, because of the differences in the legal systems of various countries, this problem should be analyzed concretely and not generalizably. Simply discussing this problem from the point of view of maritime law or civil law is bound to lead to one-sidedness of conclusion due to methodological defects. The influence of bill of lading on the transfer of title of goods is different in common law system and civil law system. Even within the various legal systems, there are large differences between countries. Generally speaking, in the United Kingdom, the intention of the parties to transfer title can usually be inferred from bills of lading. In the United States, bills of lading play a certain role in analyzing the unconditional transfer of goods, but the disposition of bills of lading only affects the security interests of the goods, not the transfer of ownership of the goods. In France, bills of lading have little effect on the transfer of title to the goods. In Germany, the delivery of bills of lading is generally synchronized with the transfer of title to the goods. The situation in our country is similar to that in Germany. In international trade settlement, the bank has only the security interest in the bill of lading, but not the ownership of the goods. But when the bank has the bill of lading, the ownership of the goods belongs to the seller or the buyer. The transfer of the ownership of goods through electronic bills of lading first faces the general legal problems arising from electronic commerce, followed by the special legal question of whether electronic bills of lading can fully realize the functions of paper bills of lading. At present, there are some laws and practices in this field, but the solution of the problem is a gradual process. China should make clear legal provisions on the legal effect of bill of lading delivery in order to provide definite legal guidance for international trade and to look after each other with maritime law. At the same time, China should seize the opportunity to legislate the electronic bill of lading in order to adapt and promote the development of China's foreign trade.
【学位授予单位】：苏州大学
【学位级别】：硕士
【学位授予年份】：2003
【分类号】：D996
【引证文献】
相关硕士学位论文 前1条
1 董越;国际货物贸易中的货物所有权转移制度研究[D];哈尔滨工程大学;2012年
本文编号：2324026
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