提單轉(zhuǎn)讓法律問題研究
發(fā)布時間：2019-07-10 14:34
【摘要】：近些年來,我國學術(shù)界關(guān)于提單法律性質(zhì)的理論研究可謂碩果累累,形成的諸多學說加總起來至少不下十來余種,大有先秦時期“百家爭鳴”之勢。然而隨著研究的深入,遇到的新問題也越來越多,不論是物權(quán)領(lǐng)域還是債權(quán)領(lǐng)域,各種學說似乎都存在著難以自圓其說之處,尚無哪種學說能有秦國般“一統(tǒng)天下”之能力。翻閱海商法文獻,處處能見到這樣的感慨：“筆者深信,在我國現(xiàn)行的海商法之下,對提單法律性質(zhì)或者說提單權(quán)利性質(zhì)理論的討論,至盡仍方興未艾。”“筆者之所以主張……實是由于依據(jù)民法合同、侵權(quán)、不當?shù)美�、無因管理等理論,均無法得出令人滿意的解釋,依據(jù)上述學說無法實現(xiàn)對提單持有人的有效保護�！薄昂Ｉ谭ㄗ鳛槊穹ǖ奶貏e法,特殊之處應(yīng)越少越好,但對于航運業(yè)的特殊現(xiàn)象,學術(shù)界必須勇于面對�！笨梢�,提單制度作為一種由海運實踐的推動而逐步形成的法律制度,其復雜性和特殊性已經(jīng)得到了學者們的共識。 盡管對于提單的法律性質(zhì)尚未形成令人信服的通說,但在某些具體的點上還是達成了相對的一致。比如,在物權(quán)領(lǐng)域,占有權(quán)憑證說和證券憑證說逐步取代了所有權(quán)憑證說的地位,成為兩種主流學說。在債權(quán)領(lǐng)域,提單債權(quán)關(guān)系作為一種有獨立性的法律關(guān)系也得到了學者們普遍的認可。目前所面臨的理論困境主要在于：提單制度涉及到到貨物運輸以及貨物貿(mào)易的方方面面,某些理論也許可以解釋關(guān)于提單某種單一的法律現(xiàn)象,卻不能繼續(xù)解釋相關(guān)的另一法律現(xiàn)象。于是,我們需要找尋這樣一種理論：既能對提單法律性質(zhì)以及提單轉(zhuǎn)讓時的法律效力等諸多關(guān)聯(lián)問題進行令人滿意的解釋,又能在民法法律體系內(nèi),保持理論自身的內(nèi)在邏輯性。從提單的歷史發(fā)展來看,提單作為商人們天才的發(fā)明,其核心在于解決承運人的交貨問題。提單擁有三大功能：海上貨物運輸合同的證明,證明貨物由承運人接受或者裝船的單證,承運人據(jù)以交付貨物的依據(jù)。這三大功能共同昭示著同一個命題：提單制度本質(zhì)上是圍繞承運人的交貨問題而設(shè)計的。筆者認為,正是要從提單的功能入手,才能找尋到研究提單理論問題的正確路徑。 回顧學術(shù)界對提單物權(quán)性質(zhì)認識的變遷,所有權(quán)憑證說從絕對地位逐步淪落到被拋棄的境地,從一個側(cè)面體現(xiàn)了理論界對提單本質(zhì)功能的探索和尊重。之所以拋棄所有權(quán)憑證說,正是學者們不想用提單制度強制性的干涉貨物所有權(quán)的歸屬,賦予提單超出自身職責的物權(quán)變動功能,以保持提單制度設(shè)計的初衷�？v觀學者們屢屢引證的一些極具有爭議的提單案例,可以發(fā)現(xiàn)一個共同特點：提單總是在發(fā)揮著原本不該屬于自己的功能。當提單制度粗暴的干涉和破壞其他法律關(guān)系的時候,將使交易的安全性大打折扣,引發(fā)諸多的爭議也就不足為奇。在關(guān)于提單轉(zhuǎn)讓債權(quán)效力的認識上,目前的研究文獻幾乎無一例外的是從運輸合同關(guān)系和提單債權(quán)關(guān)系入手,分別分析提單轉(zhuǎn)讓對托運人,承運人以及提單持有人的債權(quán)效力。筆者認為,僅僅從運輸合同關(guān)系和提單債權(quán)關(guān)系的視角,忽略了海運貿(mào)易最重要的利益主體：貨物的買賣雙方。倘若不考慮貨物買賣雙方的真實交易意圖,而單純的對提單轉(zhuǎn)讓的法律效力下定論,難免會放大提單的功能,破壞買賣雙方當事人利益,故而違背提單制度的價值基礎(chǔ)。因此,提單法律制度的理論探索,必須嚴格控制提單的本位功能,以不破壞當事人正常交易關(guān)系為基本原則。只有堅持這項原則,才能在確切意義上保護海運業(yè)務(wù)中貿(mào)易環(huán)節(jié)和運輸環(huán)節(jié)中各方當事人的利益。 基于以上認識,本文以提單的物權(quán)效力與債權(quán)效力理論為主要研究內(nèi)容,在綜合比較現(xiàn)今主流學說的優(yōu)劣之后,提出全新的“占有權(quán)憑證說”和“法定合同說”,并就兩種理論在實踐中的運用以及對其他法律關(guān)系的影響作出深入的探討。文章創(chuàng)新思路主要在以下五個方面： 1、提出提單制度理論探索的根本原則 關(guān)于提單性質(zhì)的種種學說之所以只能解釋關(guān)于提單某種單一的法律現(xiàn)象,卻不能繼續(xù)解釋相關(guān)的另一法律現(xiàn)象,其根源在于這些學說不同程度的放大了提單自身的功能。本文提出,提單制度本質(zhì)上是圍繞承運人的交貨問題而設(shè)計的,因此提單法律制度的理論探索,必須嚴格控制提單的本位功能,以不破壞當事人正常交易關(guān)系為原則。 2、對提單轉(zhuǎn)讓概念進行區(qū)分和定義 不同的前提可以推出不同的結(jié)論,而目前各種文獻對提單轉(zhuǎn)讓的理解并非一致。筆者擬將之區(qū)分為狹義說和廣義說兩種理解。以避免對研究對象認識的混亂,防止出現(xiàn)結(jié)論被誤用的情形。 3、討論占有權(quán)憑證說與民法的兼容性及實際運用問題 傳統(tǒng)的占有權(quán)憑證說不注重與民法的兼容性,廣受質(zhì)疑。本文擬對傳統(tǒng)占有權(quán)憑證說的缺陷進行闡述,并從不同角度論證提單制度中應(yīng)當引入占有權(quán)理論的理由和依據(jù)。同時,對占有權(quán)憑證說在實踐中的應(yīng)用做創(chuàng)新性思考。 4、提出提單債權(quán)關(guān)系的理論依據(jù)：“法定合同說” 在提單債權(quán)屬性的認定上,筆者將提單債權(quán)關(guān)系視為一種法定合同關(guān)系,這種說法在關(guān)于提單債權(quán)的學說中尚屬首例。但是,該觀點的提出并非空穴來風,而是借鑒于一些海事法院法官的對提單債權(quán)屬性的認識。盡管這些尚未被抽象出來形成某種學說,但非常符合提單制度的本質(zhì)功能,有其言之成理之處。因此,筆者總結(jié)了實務(wù)界法官們對提單債權(quán)效力的認識,結(jié)合民商法知識,提出“法定合同說” 5、以新視角研究提單債權(quán)效力及當事人訴權(quán)問題。 關(guān)于提單轉(zhuǎn)讓的債權(quán)效力,目前的研究文獻幾乎無一例外的是從運輸合同關(guān)系和提單債權(quán)關(guān)系入手,分別分析提單轉(zhuǎn)讓對托運人,承運人以及提單持有人的債權(quán)效力。筆者認為,僅僅從運輸合同關(guān)系和提單債權(quán)關(guān)系的視角,忽略了海運貿(mào)易最重要的利益主體：貨物的買賣雙方。所以,筆者擬按照當事人交易意圖進行劃分,以法定合同說為理論基礎(chǔ),建立了一套全新的提單債權(quán)效力體系,根據(jù)貨物所有權(quán)轉(zhuǎn)移情況的不同而對提單賦予不同的債權(quán)效力。
[Abstract]:In recent years, the theoretical study of the legal nature of the bill of lading in the academic circles of our country is very fruitful, and the many theories that have been formed are summed up by at least ten more than ten kinds, and it is a great trend in the pre-Qin period. However, with the development of research, more and more new problems are encountered, whether in the field of real right or in the field of creditor's rights, and various theories appear to be difficult to say, and there is no theory that can have the ability of the "to be under the control of the world" of the Qin State. The author is convinced that under the current maritime commercial law of our country, the legal nature of the bill of lading or the discussion of the theory of the nature of the bill of lading's right of bill of lading should be discussed. In fact, because of the theory of civil law contract, tort, unjust enrichment and no management, it is impossible to obtain a satisfactory explanation, and the effective protection of the bill of lading holder cannot be realized according to the above-mentioned theory. As a special law of civil law, maritime commercial law should be less and better, but for the special phenomenon of the shipping industry, the academic circle must be brave to face. "It can be seen that the bill of lading system is a legal system formed by the promotion of maritime practice, and its complexity and particularity have been reached by the scholars." Although the legal nature of the bill of lading has not yet been convincing, a relative one has been achieved at some specific points. For example, in the field of real right, the possession right certificate and the security certificate have gradually replaced the status of the ownership certificate and become the two mainstream studies In the field of creditor's rights, the relationship of bill of lading's right of bill of lading as a kind of legal relation with independence is also widely recognized by scholars But the theoretical dilemma is that the bill of lading system involves the carriage of goods and all aspects of the trade in goods, some theories may explain a single legal phenomenon with respect to the bill of lading, but cannot continue to explain the relevant other law. As a result, we need to find a theory that can explain the legal nature of the bill of lading and the legal effect of the bill of lading, and can maintain the intrinsic logic of the theory itself in the legal system of civil law. From the historical development of the bill of lading, the bill of lading is the invention of the merchant's genius, the core of which is to solve the carrier's delivery question The bill of lading has three functions: the certificate of the contract of carriage of goods by sea, the document certifying that the goods are accepted or loaded by the carrier, and the carrier is based on the contents of the goods delivered by the carrier. The three functions together show the same proposition: the bill of lading system is essentially designed around the carrier's delivery problem The author holds that it is the right way to find the theory of bill of lading from the function of bill of lading. In view of the change of the nature of the bill of lading in the academic field, the ownership certificate is gradually reduced from the absolute position to the abandoned situation, and the exploration of the essence of the bill of lading is reflected from one side. and it is that the scholars do not want to use the system of bill of lading to deal with the ownership of the ownership of the goods, and to give the bill of lading the function of the change of the real right over its own duty, so as to keep the system of bill of lading The original purpose of a bill of lading, which is often cited by scholars, can be found to be a common feature: the bill of lading is always on its own, and the bill of lading is always on its own. The functions of the bill of lading system, when the bill of lading system's rough interference and the destruction of other legal relations, will make the security of the transaction be greatly reduced, On the understanding of the effect of the bill of lading on the validity of the right of the bill of lading, the present research literature, without exception, is based on the relation between the relationship of the transportation contract and the right of the bill of lading, and analyzes the debt of the shipper, the carrier and the holder of the bill of lading respectively by analyzing the bill of lading. The author holds that, from the view of the relation between the relationship of transportation contract and the right of bill of lading, the most important subject of maritime trade is ignored: the purchase of goods In case of not taking into account the true transaction intention of the buyer and the seller, and the mere conclusion of the legal effect of the transfer of the bill of lading, it is difficult to enlarge the function of the bill of lading and to destroy the interests of the parties and the seller, thus violating the price of the bill of lading system. Therefore, the theoretical exploration of the bill of lading legal system must strictly control the standard function of the bill of lading in order not to destroy the normal transaction relationship of the parties. The principle is that only the principle can be adhered to in order to protect the parties in the trade and transport links in the maritime business in a definite sense Based on the above-mentioned knowledge, this paper mainly studies the validity of the bill of lading and the theory of the effectiveness of the creditor's rights, and then puts forward the new "certificate of possession" and the "legal contract theory" after the comprehensive comparison of the current mainstream theory. / unk>, and make a decision on the application of the two theories in practice and the impact on other legal relations In-depth discussion. The article's innovative thinking is mainly in The next five aspects:1. Put forward the system of bill of lading On the basic principle of exploration, the various theories about the nature of the bill of lading can only explain a single legal phenomenon of the bill of lading, but can't continue to explain Another legal phenomenon related to these theories lies in the different levels of these theories. In this paper, the bill of lading system is designed in nature around the carrier's delivery problem, so the theoretical exploration of the bill of lading's legal system must strictly control the standard function of the bill of lading in order not to destroy the party. The normal trading relationship is the principle. The distinction and definition of the concept of a single transfer may lead to different conclusions, and the present various texts The understanding of the transfer of the bill of lading is not the same. The author intends to It is divided into a narrow sense and a broad sense, so as to avoid the confusion of the research object To prevent a conclusion from being misused. On the basis of the compatibility of the civil law and the actual application of the problem, the author has the right to the right of possession. In this paper, the defects of the traditional possession certificate are discussed and the bill of lading system is proved from different angles. The reason and basis of the theory of possession should be introduced in the degree. At the same time, the possession of possession The right certificate is an innovative thinking in the application of bill of lading.4. The theoretical basis for the relationship between the bill of lading's rights and the right of the bill of lading is proposed. On the determination of the property of the bill of lading's claim, the author regards the relationship between the bill of lading and the right of the bill of lading as a legal contract. This is the first case in the doctrine of the right to a bill of lading. However, the idea is not an empty-hole, but rather a loan. In view of the fact that some of the maritime court judges are aware of the nature of the bill of lading's claims, although these have not been abstracted to form a certain theory, it is not The essence of bill of lading system is often in line with the nature of bill of lading system. Therefore, the author sums up the understanding of the validity of the bill of lading's claims by the judges of the practice circles, and puts forward the "trunk>" lega in combination with the knowledge of the civil law. l contract theory" 5. The validity of the bill of lading's rights and the right of the parties to the right to sue are studied with a new angle of view. The present study on the validity of the right of the bill of lading is almost without exception from the relation between the relationship between the transportation contract and the creditor's rights of the bill of lading. The effect of the bill of lading on the rights of the shipper, the carrier and the holder of the bill of lading. At the angle, the most important subject of the maritime trade is ignored: the buyer and the seller of the goods. Therefore, the author intends to divide the goods in accordance with the party's transaction intention, and based on the legal contract, a new system of the validity of the bill of lading's rights is established.
【學位授予單位】：西南財經(jīng)大學
【學位級別】：碩士
【學位授予年份】：2010
【分類號】：D922.294
本文編號：2512662
[Abstract]:In recent years, the theoretical study of the legal nature of the bill of lading in the academic circles of our country is very fruitful, and the many theories that have been formed are summed up by at least ten more than ten kinds, and it is a great trend in the pre-Qin period. However, with the development of research, more and more new problems are encountered, whether in the field of real right or in the field of creditor's rights, and various theories appear to be difficult to say, and there is no theory that can have the ability of the "to be under the control of the world" of the Qin State. The author is convinced that under the current maritime commercial law of our country, the legal nature of the bill of lading or the discussion of the theory of the nature of the bill of lading's right of bill of lading should be discussed. In fact, because of the theory of civil law contract, tort, unjust enrichment and no management, it is impossible to obtain a satisfactory explanation, and the effective protection of the bill of lading holder cannot be realized according to the above-mentioned theory. As a special law of civil law, maritime commercial law should be less and better, but for the special phenomenon of the shipping industry, the academic circle must be brave to face. "It can be seen that the bill of lading system is a legal system formed by the promotion of maritime practice, and its complexity and particularity have been reached by the scholars." Although the legal nature of the bill of lading has not yet been convincing, a relative one has been achieved at some specific points. For example, in the field of real right, the possession right certificate and the security certificate have gradually replaced the status of the ownership certificate and become the two mainstream studies In the field of creditor's rights, the relationship of bill of lading's right of bill of lading as a kind of legal relation with independence is also widely recognized by scholars But the theoretical dilemma is that the bill of lading system involves the carriage of goods and all aspects of the trade in goods, some theories may explain a single legal phenomenon with respect to the bill of lading, but cannot continue to explain the relevant other law. As a result, we need to find a theory that can explain the legal nature of the bill of lading and the legal effect of the bill of lading, and can maintain the intrinsic logic of the theory itself in the legal system of civil law. From the historical development of the bill of lading, the bill of lading is the invention of the merchant's genius, the core of which is to solve the carrier's delivery question The bill of lading has three functions: the certificate of the contract of carriage of goods by sea, the document certifying that the goods are accepted or loaded by the carrier, and the carrier is based on the contents of the goods delivered by the carrier. The three functions together show the same proposition: the bill of lading system is essentially designed around the carrier's delivery problem The author holds that it is the right way to find the theory of bill of lading from the function of bill of lading. In view of the change of the nature of the bill of lading in the academic field, the ownership certificate is gradually reduced from the absolute position to the abandoned situation, and the exploration of the essence of the bill of lading is reflected from one side. and it is that the scholars do not want to use the system of bill of lading to deal with the ownership of the ownership of the goods, and to give the bill of lading the function of the change of the real right over its own duty, so as to keep the system of bill of lading The original purpose of a bill of lading, which is often cited by scholars, can be found to be a common feature: the bill of lading is always on its own, and the bill of lading is always on its own. The functions of the bill of lading system, when the bill of lading system's rough interference and the destruction of other legal relations, will make the security of the transaction be greatly reduced, On the understanding of the effect of the bill of lading on the validity of the right of the bill of lading, the present research literature, without exception, is based on the relation between the relationship of the transportation contract and the right of the bill of lading, and analyzes the debt of the shipper, the carrier and the holder of the bill of lading respectively by analyzing the bill of lading. The author holds that, from the view of the relation between the relationship of transportation contract and the right of bill of lading, the most important subject of maritime trade is ignored: the purchase of goods In case of not taking into account the true transaction intention of the buyer and the seller, and the mere conclusion of the legal effect of the transfer of the bill of lading, it is difficult to enlarge the function of the bill of lading and to destroy the interests of the parties and the seller, thus violating the price of the bill of lading system. Therefore, the theoretical exploration of the bill of lading legal system must strictly control the standard function of the bill of lading in order not to destroy the normal transaction relationship of the parties. The principle is that only the principle can be adhered to in order to protect the parties in the trade and transport links in the maritime business in a definite sense Based on the above-mentioned knowledge, this paper mainly studies the validity of the bill of lading and the theory of the effectiveness of the creditor's rights, and then puts forward the new "certificate of possession" and the "legal contract theory" after the comprehensive comparison of the current mainstream theory. / unk>, and make a decision on the application of the two theories in practice and the impact on other legal relations In-depth discussion. The article's innovative thinking is mainly in The next five aspects:1. Put forward the system of bill of lading On the basic principle of exploration, the various theories about the nature of the bill of lading can only explain a single legal phenomenon of the bill of lading, but can't continue to explain Another legal phenomenon related to these theories lies in the different levels of these theories. In this paper, the bill of lading system is designed in nature around the carrier's delivery problem, so the theoretical exploration of the bill of lading's legal system must strictly control the standard function of the bill of lading in order not to destroy the party. The normal trading relationship is the principle. The distinction and definition of the concept of a single transfer may lead to different conclusions, and the present various texts The understanding of the transfer of the bill of lading is not the same. The author intends to It is divided into a narrow sense and a broad sense, so as to avoid the confusion of the research object To prevent a conclusion from being misused. On the basis of the compatibility of the civil law and the actual application of the problem, the author has the right to the right of possession. In this paper, the defects of the traditional possession certificate are discussed and the bill of lading system is proved from different angles. The reason and basis of the theory of possession should be introduced in the degree. At the same time, the possession of possession The right certificate is an innovative thinking in the application of bill of lading.4. The theoretical basis for the relationship between the bill of lading's rights and the right of the bill of lading is proposed. On the determination of the property of the bill of lading's claim, the author regards the relationship between the bill of lading and the right of the bill of lading as a legal contract. This is the first case in the doctrine of the right to a bill of lading. However, the idea is not an empty-hole, but rather a loan. In view of the fact that some of the maritime court judges are aware of the nature of the bill of lading's claims, although these have not been abstracted to form a certain theory, it is not The essence of bill of lading system is often in line with the nature of bill of lading system. Therefore, the author sums up the understanding of the validity of the bill of lading's claims by the judges of the practice circles, and puts forward the "trunk>" lega in combination with the knowledge of the civil law. l contract theory" 5. The validity of the bill of lading's rights and the right of the parties to the right to sue are studied with a new angle of view. The present study on the validity of the right of the bill of lading is almost without exception from the relation between the relationship between the transportation contract and the creditor's rights of the bill of lading. The effect of the bill of lading on the rights of the shipper, the carrier and the holder of the bill of lading. At the angle, the most important subject of the maritime trade is ignored: the buyer and the seller of the goods. Therefore, the author intends to divide the goods in accordance with the party's transaction intention, and based on the legal contract, a new system of the validity of the bill of lading's rights is established.
【學位授予單位】：西南財經(jīng)大學
【學位級別】：碩士
【學位授予年份】：2010
【分類號】：D922.294
【參考文獻】
相關(guān)期刊論文 前10條
1 徐世騰;提單轉(zhuǎn)讓相關(guān)法律問題研究[J];對外經(jīng)貿(mào)實務(wù);2002年04期
2 王劍;;海運提單的法律性質(zhì)及實務(wù)中存在問題之簡析[J];對外經(jīng)貿(mào)實務(wù);2006年11期
3 張逸;;論提單的法律性質(zhì)[J];法制與社會;2007年05期
4 劉寧杰,農(nóng)卓恩;論權(quán)利的分離與交易[J];計劃與市場探索;2003年03期
5 周穎嫻;;淺析貿(mào)易融資和結(jié)算業(yè)務(wù)中對提單功能認識的四大誤區(qū)[J];經(jīng)濟師;2008年08期
6 沈濤;;論提單持有人與承運人之間債權(quán)債務(wù)關(guān)系[J];經(jīng)濟研究導刊;2007年08期
7 李園園;;論提單轉(zhuǎn)讓與貨物所有權(quán)轉(zhuǎn)移之關(guān)系[J];遼寧行政學院學報;2008年04期
8 胡立峰;;提單轉(zhuǎn)讓后托運人的訴權(quán)問題[J];水運管理;2006年03期
9 汪波;;提單流轉(zhuǎn)過程中海上保險人的代位求償權(quán)[J];中國水運(學術(shù)版);2008年01期
10 郭瑜;論提單的物權(quán)性[J];中國法學;1997年04期
相關(guān)碩士學位論文 前5條
1 楊哲;提單轉(zhuǎn)讓法律問題研究[D];內(nèi)蒙古大學;2004年
2 倪哲慧;論提單的法律性質(zhì)及其對提單流通性的影響[D];上海交通大學;2007年
3 趙婷婷;提單制度的框架[D];上海海事大學;2007年
4 劉園園;論提單的債權(quán)關(guān)系[D];上海海事大學;2007年
5 欒珂;論提單的證券法律特征與流通性[D];大連海事大學;2008年
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