關(guān)于電子提單的法律問題研究
發(fā)布時間：2018-12-12 03:54
【摘要】：在電子商務(wù)的發(fā)展如火如荼的大背景下,在世界范圍的航運業(yè)內(nèi),原有的提單制度由于高昂的成本、緩慢的周轉(zhuǎn)速度、工作上的漏洞以及其他類似的問題,越來越不適應(yīng)行業(yè)的迅猛發(fā)展,國際航運業(yè)對提單改革的呼聲越來越高,在這種情況下以電子數(shù)據(jù)為載體傳輸信息資料的新形式提單——電子提單應(yīng)運而生。 隨著電子提單在海運實踐中運用的日益增多,人們越來越意識到,在處理與電子提單相關(guān)的問題時,現(xiàn)有的法律規(guī)范顯得過于不協(xié)調(diào)或不完善。于是出現(xiàn)了一系列的法律問題,其中尤為突出的是電子提單在流通中和訴訟中的法律問題。電子提單在流通中需要解決的法律問題主要有電子提單能否流通?如何流通?以及流通中各方當(dāng)事人的權(quán)利和義務(wù)等。在涉及電子提單的訴訟中需要解決的突出法律問題就是電子提單案件的涉外管轄權(quán)和電子提單的證據(jù)效力。電子提單的應(yīng)用,很大程度上取決于這些法律問題的解決。為解決這些問題,各國都不同程度地做出了很大的努力。然而,電子提單的運作具有全球性,要徹底解決這些問題,單靠個別國家的立法顯然是不夠的,需要通過國際公約,并在國際層面上建立起規(guī)范這種交易的法律框架。一些國際組織順應(yīng)實踐發(fā)展的需要,紛紛制定了規(guī)范電子數(shù)據(jù)交換的示范規(guī)則。 目前,我國在電子提單方面的研究還不成熟,隨著實踐的發(fā)展不斷暴露出我國海商法在這一新領(lǐng)域的理論研究和立法的不足。為了順應(yīng)國際海運事業(yè)的發(fā)展趨勢和國際理論界對電子提單問題的普遍關(guān)注,我們有必要對電子提單的法律問題作出進一步的研究。外國和國際組織在電子提單的實踐與理論發(fā)展中取得的有益成果都值得我們借鑒。 本文將主要針對電子提單在流通中和訴訟中的法律問題,結(jié)合我國國情并借鑒外國和國際組織的立法與實踐經(jīng)驗進行積極的探討。本文首先對電子提單進行了概述,在概述的基礎(chǔ)上對電子提單在流通中和訴訟中的法律問題分別進行論述,通過分析比較各國和國際組織的立法與實踐試圖找出解決問題的方法。最后,本文就完善電子提單立法提出自己的建議。
[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.
【學(xué)位授予單位】：清華大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2005
【分類號】：D996
本文編號：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.
【學(xué)位授予單位】：清華大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2005
【分類號】：D996
【引證文獻】
相關(guān)碩士學(xué)位論文 前1條
1 王甜甜;論電子提單的管轄權(quán)[D];上海交通大學(xué);2007年
，本文編號：2373857
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