关于电子提单的法律问题研究
发布时间：2018-12-12 03:54
【摘要】：在电子商务的发展如火如荼的大背景下,在世界范围的航运业内,原有的提单制度由于高昂的成本、缓慢的周转速度、工作上的漏洞以及其他类似的问题,越来越不适应行业的迅猛发展,国际航运业对提单改革的呼声越来越高,在这种情况下以电子数据为载体传输信息资料的新形式提单——电子提单应运而生。 随着电子提单在海运实践中运用的日益增多,人们越来越意识到,在处理与电子提单相关的问题时,现有的法律规范显得过于不协调或不完善。于是出现了一系列的法律问题,其中尤为突出的是电子提单在流通中和诉讼中的法律问题。电子提单在流通中需要解决的法律问题主要有电子提单能否流通?如何流通?以及流通中各方当事人的权利和义务等。在涉及电子提单的诉讼中需要解决的突出法律问题就是电子提单案件的涉外管辖权和电子提单的证据效力。电子提单的应用,很大程度上取决于这些法律问题的解决。为解决这些问题,各国都不同程度地做出了很大的努力。然而,电子提单的运作具有全球性,要彻底解决这些问题,单靠个别国家的立法显然是不够的,需要通过国际公约,并在国际层面上建立起规范这种交易的法律框架。一些国际组织顺应实践发展的需要,纷纷制定了规范电子数据交换的示范规则。 目前,我国在电子提单方面的研究还不成熟,随着实践的发展不断暴露出我国海商法在这一新领域的理论研究和立法的不足。为了顺应国际海运事业的发展趋势和国际理论界对电子提单问题的普遍关注,我们有必要对电子提单的法律问题作出进一步的研究。外国和国际组织在电子提单的实践与理论发展中取得的有益成果都值得我们借鉴。 本文将主要针对电子提单在流通中和诉讼中的法律问题,结合我国国情并借鉴外国和国际组织的立法与实践经验进行积极的探讨。本文首先对电子提单进行了概述,在概述的基础上对电子提单在流通中和诉讼中的法律问题分别进行论述,通过分析比较各国和国际组织的立法与实践试图找出解决问题的方法。最后,本文就完善电子提单立法提出自己的建议。
[Abstract]:In the context of the rapid development of electronic commerce, in the worldwide shipping industry, the original bill of lading system due to high costs, slow turnover speed, loopholes in the work and other similar problems, With the rapid development of the industry, the international shipping industry calls for the reform of bill of lading more and more. In this case, a new form of bill of lading, electronic bill of lading, which uses electronic data as the carrier to transmit information, emerges as the times require. With the increasing use of electronic bills of lading in maritime transport practice, people are more and more aware that, in dealing with the problems related to electronic bills of lading, the existing legal norms are too uncoordinated or imperfect. There are a series of legal problems, especially in the circulation of electronic bills of lading and litigation. The main legal problems to be solved in the circulation of electronic bill of lading are whether the electronic bill of lading can be circulated? How do they circulate? And the rights and obligations of the parties in circulation. The outstanding legal problems that need to be solved in the litigation involving electronic bill of lading are the foreign jurisdiction of the electronic bill of lading and the evidentiary effect of the electronic bill of lading. The application of electronic bill of lading depends to a great extent on the solution of these legal problems. In order to solve these problems, all countries have made great efforts to varying degrees. However, the operation of electronic bills of lading is global. To solve these problems thoroughly, it is obviously not enough to rely on the legislation of individual countries. It is necessary to adopt international conventions and establish a legal framework to regulate such transactions at the international level. Some international organizations have made model rules to regulate EDI in response to the development of practice. At present, the research on electronic bill of lading in our country is not mature. With the development of practice, the theoretical research and legislation of Chinese maritime law in this new field are constantly exposed. In order to conform to the development trend of the international shipping industry and the general concern of the international theoretical circle on the electronic bill of lading, it is necessary for us to make further research on the legal issue of the electronic bill of lading. The beneficial results obtained by foreign countries and international organizations in the practice and theoretical development of electronic bills of lading are worthy of our reference. This paper mainly aims at the legal problems of electronic bill of lading in circulation and litigation, combines the national conditions of our country and draws lessons from the legislative and practical experience of foreign countries and international organizations. This paper first summarizes the electronic bill of lading, on the basis of an overview of the electronic bill of lading in circulation and litigation in the legal issues are discussed respectively. By analyzing and comparing the legislation and practice of various countries and international organizations, the author tries to find out how to solve the problem. Finally, this paper puts forward some suggestions on how to perfect the legislation of electronic bill of lading.
【学位授予单位】：清华大学
【学位级别】：硕士
【学位授予年份】：2005
【分类号】：D996
本文编号：2373857
[Abstract]:In the context of the rapid development of electronic commerce, in the worldwide shipping industry, the original bill of lading system due to high costs, slow turnover speed, loopholes in the work and other similar problems, With the rapid development of the industry, the international shipping industry calls for the reform of bill of lading more and more. In this case, a new form of bill of lading, electronic bill of lading, which uses electronic data as the carrier to transmit information, emerges as the times require. With the increasing use of electronic bills of lading in maritime transport practice, people are more and more aware that, in dealing with the problems related to electronic bills of lading, the existing legal norms are too uncoordinated or imperfect. There are a series of legal problems, especially in the circulation of electronic bills of lading and litigation. The main legal problems to be solved in the circulation of electronic bill of lading are whether the electronic bill of lading can be circulated? How do they circulate? And the rights and obligations of the parties in circulation. The outstanding legal problems that need to be solved in the litigation involving electronic bill of lading are the foreign jurisdiction of the electronic bill of lading and the evidentiary effect of the electronic bill of lading. The application of electronic bill of lading depends to a great extent on the solution of these legal problems. In order to solve these problems, all countries have made great efforts to varying degrees. However, the operation of electronic bills of lading is global. To solve these problems thoroughly, it is obviously not enough to rely on the legislation of individual countries. It is necessary to adopt international conventions and establish a legal framework to regulate such transactions at the international level. Some international organizations have made model rules to regulate EDI in response to the development of practice. At present, the research on electronic bill of lading in our country is not mature. With the development of practice, the theoretical research and legislation of Chinese maritime law in this new field are constantly exposed. In order to conform to the development trend of the international shipping industry and the general concern of the international theoretical circle on the electronic bill of lading, it is necessary for us to make further research on the legal issue of the electronic bill of lading. The beneficial results obtained by foreign countries and international organizations in the practice and theoretical development of electronic bills of lading are worthy of our reference. This paper mainly aims at the legal problems of electronic bill of lading in circulation and litigation, combines the national conditions of our country and draws lessons from the legislative and practical experience of foreign countries and international organizations. This paper first summarizes the electronic bill of lading, on the basis of an overview of the electronic bill of lading in circulation and litigation in the legal issues are discussed respectively. By analyzing and comparing the legislation and practice of various countries and international organizations, the author tries to find out how to solve the problem. Finally, this paper puts forward some suggestions on how to perfect the legislation of electronic bill of lading.
【学位授予单位】：清华大学
【学位级别】：硕士
【学位授予年份】：2005
【分类号】：D996
【引证文献】
相关硕士学位论文 前1条
1 王甜甜;论电子提单的管辖权[D];上海交通大学;2007年
，本文编号：2373857
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