提单转让法律问题研究
发布时间：2019-07-10 14:34
【摘要】：近些年来,我国学术界关于提单法律性质的理论研究可谓硕果累累,形成的诸多学说加总起来至少不下十来余种,大有先秦时期“百家争鸣”之势。然而随着研究的深入,遇到的新问题也越来越多,不论是物权领域还是债权领域,各种学说似乎都存在着难以自圆其说之处,尚无哪种学说能有秦国般“一统天下”之能力。翻阅海商法文献,处处能见到这样的感慨：“笔者深信,在我国现行的海商法之下,对提单法律性质或者说提单权利性质理论的讨论,至尽仍方兴未艾。”“笔者之所以主张……实是由于依据民法合同、侵权、不当得利、无因管理等理论,均无法得出令人满意的解释,依据上述学说无法实现对提单持有人的有效保护。”“海商法作为民法的特别法,特殊之处应越少越好,但对于航运业的特殊现象,学术界必须勇于面对。”可见,提单制度作为一种由海运实践的推动而逐步形成的法律制度,其复杂性和特殊性已经得到了学者们的共识。 尽管对于提单的法律性质尚未形成令人信服的通说,但在某些具体的点上还是达成了相对的一致。比如,在物权领域,占有权凭证说和证券凭证说逐步取代了所有权凭证说的地位,成为两种主流学说。在债权领域,提单债权关系作为一种有独立性的法律关系也得到了学者们普遍的认可。目前所面临的理论困境主要在于：提单制度涉及到到货物运输以及货物贸易的方方面面,某些理论也许可以解释关于提单某种单一的法律现象,却不能继续解释相关的另一法律现象。于是,我们需要找寻这样一种理论：既能对提单法律性质以及提单转让时的法律效力等诸多关联问题进行令人满意的解释,又能在民法法律体系内,保持理论自身的内在逻辑性。从提单的历史发展来看,提单作为商人们天才的发明,其核心在于解决承运人的交货问题。提单拥有三大功能：海上货物运输合同的证明,证明货物由承运人接受或者装船的单证,承运人据以交付货物的依据。这三大功能共同昭示着同一个命题：提单制度本质上是围绕承运人的交货问题而设计的。笔者认为,正是要从提单的功能入手,才能找寻到研究提单理论问题的正确路径。 回顾学术界对提单物权性质认识的变迁,所有权凭证说从绝对地位逐步沦落到被抛弃的境地,从一个侧面体现了理论界对提单本质功能的探索和尊重。之所以抛弃所有权凭证说,正是学者们不想用提单制度强制性的干涉货物所有权的归属,赋予提单超出自身职责的物权变动功能,以保持提单制度设计的初衷。纵观学者们屡屡引证的一些极具有争议的提单案例,可以发现一个共同特点：提单总是在发挥着原本不该属于自己的功能。当提单制度粗暴的干涉和破坏其他法律关系的时候,将使交易的安全性大打折扣,引发诸多的争议也就不足为奇。在关于提单转让债权效力的认识上,目前的研究文献几乎无一例外的是从运输合同关系和提单债权关系入手,分别分析提单转让对托运人,承运人以及提单持有人的债权效力。笔者认为,仅仅从运输合同关系和提单债权关系的视角,忽略了海运贸易最重要的利益主体：货物的买卖双方。倘若不考虑货物买卖双方的真实交易意图,而单纯的对提单转让的法律效力下定论,难免会放大提单的功能,破坏买卖双方当事人利益,故而违背提单制度的价值基础。因此,提单法律制度的理论探索,必须严格控制提单的本位功能,以不破坏当事人正常交易关系为基本原则。只有坚持这项原则,才能在确切意义上保护海运业务中贸易环节和运输环节中各方当事人的利益。 基于以上认识,本文以提单的物权效力与债权效力理论为主要研究内容,在综合比较现今主流学说的优劣之后,提出全新的“占有权凭证说”和“法定合同说”,并就两种理论在实践中的运用以及对其他法律关系的影响作出深入的探讨。文章创新思路主要在以下五个方面： 1、提出提单制度理论探索的根本原则 关于提单性质的种种学说之所以只能解释关于提单某种单一的法律现象,却不能继续解释相关的另一法律现象,其根源在于这些学说不同程度的放大了提单自身的功能。本文提出,提单制度本质上是围绕承运人的交货问题而设计的,因此提单法律制度的理论探索,必须严格控制提单的本位功能,以不破坏当事人正常交易关系为原则。 2、对提单转让概念进行区分和定义 不同的前提可以推出不同的结论,而目前各种文献对提单转让的理解并非一致。笔者拟将之区分为狭义说和广义说两种理解。以避免对研究对象认识的混乱,防止出现结论被误用的情形。 3、讨论占有权凭证说与民法的兼容性及实际运用问题 传统的占有权凭证说不注重与民法的兼容性,广受质疑。本文拟对传统占有权凭证说的缺陷进行阐述,并从不同角度论证提单制度中应当引入占有权理论的理由和依据。同时,对占有权凭证说在实践中的应用做创新性思考。 4、提出提单债权关系的理论依据：“法定合同说” 在提单债权属性的认定上,笔者将提单债权关系视为一种法定合同关系,这种说法在关于提单债权的学说中尚属首例。但是,该观点的提出并非空穴来风,而是借鉴于一些海事法院法官的对提单债权属性的认识。尽管这些尚未被抽象出来形成某种学说,但非常符合提单制度的本质功能,有其言之成理之处。因此,笔者总结了实务界法官们对提单债权效力的认识,结合民商法知识,提出“法定合同说” 5、以新视角研究提单债权效力及当事人诉权问题。 关于提单转让的债权效力,目前的研究文献几乎无一例外的是从运输合同关系和提单债权关系入手,分别分析提单转让对托运人,承运人以及提单持有人的债权效力。笔者认为,仅仅从运输合同关系和提单债权关系的视角,忽略了海运贸易最重要的利益主体：货物的买卖双方。所以,笔者拟按照当事人交易意图进行划分,以法定合同说为理论基础,建立了一套全新的提单债权效力体系,根据货物所有权转移情况的不同而对提单赋予不同的债权效力。
[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.
【学位授予单位】：西南财经大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D922.294
本文编号：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.
【学位授予单位】：西南财经大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D922.294
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