BOLERO電子提單若干法律問題研究
發(fā)布時間：2019-05-21 09:01
【摘要】： BOLERO是Bill Of Lading for Electronic Registry Organization的簡稱,是環(huán)球銀行財務通訊協(xié)會(SWIFT)和海運業(yè)者的再保團體聯(lián)合運送俱樂部(TT Club)于1998年初組建一個合資服務公司。它將《國際海事委員會電子提單規(guī)則》、數(shù)字簽名和權(quán)利登記中心相結(jié)合,是一套旨在為國際貿(mào)易尤其是航運單據(jù)提供電子化服務的系統(tǒng)。經(jīng)試運行后,效果良好,因此于1999年9月27日正式投入運行。 BOLERO.NET最重要的服務項目有核心商務平臺和所有權(quán)檔案服務。前者確保所有貿(mào)易文件的交易訊息能夠安全傳遞至訊息接收者,后者的主要功能是為電子提單提供線上監(jiān)控契約及貨物所有權(quán)移轉(zhuǎn)的服務。 BOLERO雖然在世界上許多國家獲得了巨大成功,但是它對于中國的大多數(shù)企業(yè)還是一個新生事物,目前只有為數(shù)不多的企業(yè)成為BOLERO系統(tǒng)的會員。提單電子化雖然是未來貿(mào)易和航運發(fā)展的必然趨勢,但它畢竟沖擊著傳統(tǒng)的國際貿(mào)易方式和原有的相關(guān)立法。本文的目的正是研究在引入BOLERO模式電子提單后我國現(xiàn)有的民法,合同法,海商法,證據(jù)法以及法學理論與BOLERO模式的幾個沖突而引發(fā)的問題。 本文主要內(nèi)容及研究結(jié)論如下: WP=4 第一章主要介紹電子提單的定義、電子提單的立法實踐和商業(yè)實踐,并重點介紹BOLERO電子提單的歷史背景、具體運作模式和相對于其他電子提單的優(yōu)點,以期對BOLERO電子提單有一個宏觀的認識。 第二章是全文的核心部分。提單所表彰的權(quán)利性質(zhì)歷來是學術(shù)界爭論的焦點。本章從介紹傳統(tǒng)提單所表彰權(quán)利性質(zhì)的幾種學說入手,用排除法和“功能等同性原理”結(jié)合傳統(tǒng)民法理論對傳統(tǒng)提單和電子提單的異同進行比較分析,旨在探討B(tài)OLERO電子提單所表彰的權(quán)利性質(zhì)。結(jié)論為BOLERO電子提單所表彰的權(quán)利性質(zhì)以“代表說”來解釋最為合理,即承運人具有貨物的直接占有權(quán),提單持有人具有間接占有權(quán)。提單的轉(zhuǎn)移是貨物間接占有權(quán)的轉(zhuǎn)移,它本來應依民法規(guī)定辦理轉(zhuǎn)移手續(xù),而在此種場合下之所以不要辦手續(xù),是因為提單是貨物的代表。提單的轉(zhuǎn)讓是否轉(zhuǎn)讓貨物所有權(quán),對承運人而言,并沒有太大的影響。 第三章從海事國際私法的一般原則入手,將海運提單的共性和BOLERO系統(tǒng)的特性相結(jié)合,分析有關(guān)國際條約、國際慣例、內(nèi)國法強行性規(guī)則、當事人意思自治和最密切聯(lián)系原則適用于BOLERO電子提單債權(quán)關(guān)系的序列,以期探討B(tài)OLERO電子提單債權(quán)關(guān)系的準據(jù)法問題。 第四章主要通過對英美法系和大陸法系的立法比較,從法律實務角度,探討在國內(nèi)訴訟法正式賦予電子提單與書面提單具有同等法律效力之前,在國內(nèi)國外的法律環(huán)境中如何保證BOLERO電子提單證明力的問題。
[Abstract]:BOLERO, the abbreviation of Bill Of Lading for Electronic Registry Organization, is a joint venture service company between (SWIFT), a financial communications association of global banks, and (TT Club), a joint shipping group of shipping operators, in early 1998. It combines the International Maritime Committee Electronic Bill of Lading rules, digital signatures and rights registration centers, and is a set of systems designed to provide electronic services for international trade, especially shipping documents. After trial operation, the effect was good, so it was officially put into operation on September 27, 1999. The most important service items of BOLERO.NET are core business platform and ownership file service. The former ensures that the transaction information of all trade documents can be safely transmitted to the recipient of the message, while the main function of the latter is to provide online monitoring of contracts and transfer of ownership of goods for electronic bills of lading. Although BOLERO has achieved great success in many countries in the world, it is still a new thing for most enterprises in China, and only a small number of enterprises have become members of BOLERO system at present. Although electronic bill of lading is the inevitable trend of trade and shipping development in the future, it impacts the traditional international trade mode and the original relevant legislation after all. The purpose of this paper is to study the existing civil law, contract law, maritime law, evidence law and several conflicts between legal theory and BOLERO model after the introduction of BOLERO mode electronic bill of lading. The main contents and research conclusions of this paper are as follows: the first chapter of WP=4 mainly introduces the definition of electronic bill of lading, the legislative practice and commercial practice of electronic bill of lading. The historical background, concrete operation mode and advantages of BOLERO electronic bill of lading compared with other electronic bills of lading are introduced in order to have a macro understanding of BOLERO electronic bill of lading. The second chapter is the core part of the full text. The nature of the rights recognized in the bill of lading has always been the focus of debate in academic circles. Starting with the introduction of several theories about the nature of the rights recognized in the traditional bill of lading, this chapter compares and analyzes the similarities and differences between the traditional bill of lading and the electronic bill of lading by using the exclusion method and the principle of functional equivalence combined with the traditional civil law theory. The purpose of this paper is to explore the nature of the rights recognized in BOLERO electronic bill of lading. The conclusion is that the nature of the rights recognized by BOLERO electronic bill of lading is most reasonable explained by "representative theory", that is, the carrier has the direct possession of the goods and the holder of the bill of lading has the indirect possession. The transfer of bill of lading is the transfer of indirect possession of the goods, which should have gone through the transfer formalities in accordance with the provisions of civil law, and the reason why the bill of lading should not go through the formalities in this case is because the bill of lading is the representative of the goods. Whether the transfer of bill of lading transfers ownership of the goods does not have much impact on the carrier. The third chapter, starting with the general principles of maritime private international law, combines the commonness of maritime bill of lading with the characteristics of BOLERO system, and analyzes the relevant international treaties, international practice and domestic law enforcement rules. The principle of party autonomy and the closest relationship is applicable to the sequence of BOLERO electronic bill of lading claims, in order to explore the applicable law of BOLERO electronic bill of lading creditor's rights. The fourth chapter mainly through the legislative comparison between the common law system and the civil law system, from the legal practice point of view, discusses before the domestic procedural law formally gives the electronic bill of lading and the written bill of lading the same legal effect. How to ensure the proof power of BOLERO electronic bill of lading in the domestic and foreign legal environment.
【學位授予單位】：華東政法學院
【學位級別】：碩士
【學位授予年份】：2004
【分類號】：D99
本文編號：2481984
[Abstract]:BOLERO, the abbreviation of Bill Of Lading for Electronic Registry Organization, is a joint venture service company between (SWIFT), a financial communications association of global banks, and (TT Club), a joint shipping group of shipping operators, in early 1998. It combines the International Maritime Committee Electronic Bill of Lading rules, digital signatures and rights registration centers, and is a set of systems designed to provide electronic services for international trade, especially shipping documents. After trial operation, the effect was good, so it was officially put into operation on September 27, 1999. The most important service items of BOLERO.NET are core business platform and ownership file service. The former ensures that the transaction information of all trade documents can be safely transmitted to the recipient of the message, while the main function of the latter is to provide online monitoring of contracts and transfer of ownership of goods for electronic bills of lading. Although BOLERO has achieved great success in many countries in the world, it is still a new thing for most enterprises in China, and only a small number of enterprises have become members of BOLERO system at present. Although electronic bill of lading is the inevitable trend of trade and shipping development in the future, it impacts the traditional international trade mode and the original relevant legislation after all. The purpose of this paper is to study the existing civil law, contract law, maritime law, evidence law and several conflicts between legal theory and BOLERO model after the introduction of BOLERO mode electronic bill of lading. The main contents and research conclusions of this paper are as follows: the first chapter of WP=4 mainly introduces the definition of electronic bill of lading, the legislative practice and commercial practice of electronic bill of lading. The historical background, concrete operation mode and advantages of BOLERO electronic bill of lading compared with other electronic bills of lading are introduced in order to have a macro understanding of BOLERO electronic bill of lading. The second chapter is the core part of the full text. The nature of the rights recognized in the bill of lading has always been the focus of debate in academic circles. Starting with the introduction of several theories about the nature of the rights recognized in the traditional bill of lading, this chapter compares and analyzes the similarities and differences between the traditional bill of lading and the electronic bill of lading by using the exclusion method and the principle of functional equivalence combined with the traditional civil law theory. The purpose of this paper is to explore the nature of the rights recognized in BOLERO electronic bill of lading. The conclusion is that the nature of the rights recognized by BOLERO electronic bill of lading is most reasonable explained by "representative theory", that is, the carrier has the direct possession of the goods and the holder of the bill of lading has the indirect possession. The transfer of bill of lading is the transfer of indirect possession of the goods, which should have gone through the transfer formalities in accordance with the provisions of civil law, and the reason why the bill of lading should not go through the formalities in this case is because the bill of lading is the representative of the goods. Whether the transfer of bill of lading transfers ownership of the goods does not have much impact on the carrier. The third chapter, starting with the general principles of maritime private international law, combines the commonness of maritime bill of lading with the characteristics of BOLERO system, and analyzes the relevant international treaties, international practice and domestic law enforcement rules. The principle of party autonomy and the closest relationship is applicable to the sequence of BOLERO electronic bill of lading claims, in order to explore the applicable law of BOLERO electronic bill of lading creditor's rights. The fourth chapter mainly through the legislative comparison between the common law system and the civil law system, from the legal practice point of view, discusses before the domestic procedural law formally gives the electronic bill of lading and the written bill of lading the same legal effect. How to ensure the proof power of BOLERO electronic bill of lading in the domestic and foreign legal environment.
【學位授予單位】：華東政法學院
【學位級別】：碩士
【學位授予年份】：2004
【分類號】：D99
【引證文獻】
相關(guān)期刊論文 前1條
1 李秋娟;;論電子提單在國際貿(mào)易中的應用[J];對外經(jīng)貿(mào)實務;2008年12期
相關(guān)碩士學位論文 前1條
1 劉釗;電子提單流轉(zhuǎn)模式法律問題研究[D];大連海事大學;2011年
，本文編號：2481984
本文鏈接：http://sikaile.net/falvlunwen/sflw/2481984.html
