浅析提单的物权凭证性质问题
发布时间：2019-01-08 10:34
【摘要】：提单是一种重要的“权利凭证”,在国际贸易中扮演着举足轻重的角色。但关于提单的“权利凭证”中的“权利”到底是哪种权利,海商法以及国际贸易学界一直存有争议,不利于单证贸易的顺利进行。因此,研究提单权利属性和法律制度就有很重要的现实意义。 本文第一部分是关于提单权利属性学说的理论回顾。海商法学界和国际贸易学界关于提单的权利属性问题大致分为四种学说:所有权凭证学说、占有权凭证学说、抵押权学说和综合学说。 本文的第二部分论证提单的所有权凭证说缺乏法律依据。此部分首先进行理论分析,认为提单的所有权凭证说缺乏法律和国际公约的支持。然后进行案例分析,通过案例说明,由于缺乏统一的标准,法院在审理有关提单纠纷案件时难以辨认过失方的责任属性是违约还是侵权。 本文的第三部分论证提单的所有权凭证说不符合国际贸易的实际情况。分别从提单在货物买卖环节、货款支付环节和保险环节所表现出来的性质的角度来说明尽管提单在这些环节中起到重要的作用,但这些作用的发挥均是与提单的所有权凭证性质没有关系的。 本文的第四部分对提单的物权性进行了分析。此部分笔者认为提单虽然不是所有权凭证,但依然表现出物权性。这种物权性是指提单持有人对提单项下货物的占有权。 本文的最后一部分是结论和建议。
[Abstract]:Bill of lading is an important document of rights and plays an important role in international trade. However, what kind of right is the right in the bill of lading, maritime law and international trade have been controversial, which is not conducive to the smooth conduct of document trade. Therefore, it is of great practical significance to study the property and legal system of bill of lading. The first part of this paper is a review of the theory of the property of bill of lading. The right attribute of bill of lading in the field of maritime law and international trade can be divided into four theories: the theory of document of title, the theory of proof of possession, the theory of mortgage and the theory of synthesis. The second part of this paper demonstrates that the bill of lading is lack of legal basis. First of all, this part makes a theoretical analysis and thinks that the proof of title of bill of lading lacks the support of law and international convention. Then the case analysis shows that due to the lack of a unified standard, it is difficult for the court to identify whether the negligent party's liability attribute is breach of contract or infringement in the case of bill of lading dispute. The third part demonstrates that the proof of title of bill of lading does not accord with the actual situation of international trade. From the point of view of the nature of the bill of lading in the aspects of the sale of goods, payment of goods and insurance, respectively, although the bill of lading plays an important role in these links, However, the exertion of these functions is not related to the nature of the bill of lading. The fourth part of this paper analyzes the property of bill of lading. The author thinks that the bill of lading is not a document of title, but still shows real right. This property right refers to the possession of the goods under the bill of lading by the holder of the bill of lading. The last part of this paper is the conclusion and suggestion.
【学位授予单位】：对外经济贸易大学
【学位级别】：硕士
【学位授予年份】：2006
【分类号】：D996.19
本文编号：2404488
[Abstract]:Bill of lading is an important document of rights and plays an important role in international trade. However, what kind of right is the right in the bill of lading, maritime law and international trade have been controversial, which is not conducive to the smooth conduct of document trade. Therefore, it is of great practical significance to study the property and legal system of bill of lading. The first part of this paper is a review of the theory of the property of bill of lading. The right attribute of bill of lading in the field of maritime law and international trade can be divided into four theories: the theory of document of title, the theory of proof of possession, the theory of mortgage and the theory of synthesis. The second part of this paper demonstrates that the bill of lading is lack of legal basis. First of all, this part makes a theoretical analysis and thinks that the proof of title of bill of lading lacks the support of law and international convention. Then the case analysis shows that due to the lack of a unified standard, it is difficult for the court to identify whether the negligent party's liability attribute is breach of contract or infringement in the case of bill of lading dispute. The third part demonstrates that the proof of title of bill of lading does not accord with the actual situation of international trade. From the point of view of the nature of the bill of lading in the aspects of the sale of goods, payment of goods and insurance, respectively, although the bill of lading plays an important role in these links, However, the exertion of these functions is not related to the nature of the bill of lading. The fourth part of this paper analyzes the property of bill of lading. The author thinks that the bill of lading is not a document of title, but still shows real right. This property right refers to the possession of the goods under the bill of lading by the holder of the bill of lading. The last part of this paper is the conclusion and suggestion.
【学位授予单位】：对外经济贸易大学
【学位级别】：硕士
【学位授予年份】：2006
【分类号】：D996.19
【引证文献】
相关硕士学位论文 前1条
1 朱畏;国际货运代理提单及相关法律问题研究[D];大连海事大学;2007年
，本文编号：2404488
本文链接：https://www.wllwen.com/falvlunwen/sflw/2404488.html
