无单放货若干问题研究

发布时间：2018-05-01 08:10

本文选题：提单 + 无单放货　；参考：《上海海事大学》2005年硕士论文

【摘要】：在海上货物运输中,承运人及其代理人、受雇人凭正本提单将货物交付给正本提单的持有人,以此保证提单持有人的合法权益,这是自提单产生以来为各国海商法及国际公约所认同,并为国际海上运输及国际贸易中各方所遵守的根本原则。然而,在航运实践中,由于科学技术的发达,船舶周转速度加快,加之短航程增多,使得海上运输货物先于提单到达卸货港已属正常。存此种情况下,由于种种原因,在目的港不凭正本提单放货的现象屡见不鲜,尤其在油船运输和集装箱运输的情况下,承运人常常会凭提单副本和保函放货。尽管我国《海商法》颁布实施已有十几个年头,承运人的凭单交货义务以及提单是“据以交付货物的保证”的规定已经为法律所确认,但就近年来相关案件的审理情况来看,对无单放货的法律责任、责任限制、抗辩、损害赔偿等问题还有较多不尽一致的认识与理解。笔者根据贸易和航运实践,试分析无单放货行为发生的原因,通过总结无单放货行为的特征,对无单放货行为进行界定。同时,为更好地分析无单放货行为的法律性质,笔者首先通过参考英国及其他国家的法律规定,结合我国的立法和司法实践,对提单的法律性质进行探讨,认为提单同时表彰了物权和债权,并分析其所表彰的物权和债权的性质。在对提单法律性质认定的基础上,得出无单放货行为同时构成侵权和违约,属于侵权和违约责任的竞合。由于在航运实践中,无单放货行为还牵涉到各方当事人,笔者从实际承运人、承运人的代理人、其他相关人三个角度出发,分析了相关当事人的法律责任承担问题。同时试讨论了无单放货的抗辩事由、记名提单下无单放货法律等问题。并根据无单放货中通常是凭副本提单加保函提货这一普遍的做法,试对海运保函的法律性质和效力、善意保函的界定和可靠的保函确定等问题进行了探讨。谨希望通过此文,有助于我国立法和司法对于无单放货问题进行更深入的研究,以便使我国航运界正确处理无单放货问题,避免无单放货所产生的风险与损失。不当之处,还请各位老师不吝赐教。
[Abstract]:In the carriage of goods by sea, the carrier, his agent and his servant deliver the goods to the holder of the original bill of lading on the basis of the original bill of lading, thereby guaranteeing the legitimate rights and interests of the holder of the bill of lading, This is a fundamental principle that has been recognized by the maritime law and international conventions of various countries since the bill of lading came into being, and has been observed by all parties in international maritime transport and international trade. However, in shipping practice, due to the development of science and technology, the speed of ship turnover and the increase of short voyage, it is normal for the goods transported by sea to reach the port of discharge before the bill of lading. In such cases, for various reasons, it is common for the port of destination not to release goods by the original bill of lading, especially in the case of tanker and container transportation, the carrier will often release the goods on the basis of a copy of the bill of lading and a letter of guarantee. Although it has been more than ten years since China's Maritime Law was promulgated and implemented, the carrier's obligation to deliver goods by voucher and the stipulation that the bill of lading is the guarantee for the delivery of the goods has been confirmed by the law, but in the light of the trial of relevant cases in recent years, There are still many different understandings about the legal liability, limitation of liability, defense, damages and so on. According to the practice of trade and shipping, the author tries to analyze the causes of the behavior of undocumented delivery, and by summing up the characteristics of the behavior of delivering goods without bill, the author defines the behavior of delivery of goods without bill of lading. At the same time, in order to better analyze the legal nature of the bill of lading, the author first discusses the legal nature of the bill of lading by referring to the legal provisions of the United Kingdom and other countries and combining the legislation and judicial practice of our country. It is believed that bill of lading recognizes both real right and creditor's right, and analyzes the nature of real right and creditor's right recognized by bill of lading. On the basis of the legal nature of bill of lading, it is concluded that the delivery of goods without bill of lading constitutes both infringement and breach of contract, which belongs to the concurrence of tort and breach of contract. Due to the fact that the delivery of goods without bill of lading also involves the parties involved in shipping practice, the author analyzes the legal liability of the relevant parties from three angles: the actual carrier, the carrier's agent and other related persons. At the same time, this paper discusses the defense of delivery without bill of lading, the law of delivery without bill of lading and so on. According to the general practice of collecting goods by duplicate bill of lading and guarantee, the legal nature and effect of maritime guarantee, the definition of bona fide guarantee and the determination of reliable guarantee are discussed. It is hoped that this paper will be helpful to our country's legislation and judicature to conduct more in-depth research on the issue of undocumented delivery, so as to enable the shipping industry of our country to correctly deal with the problem of undocumented delivery, and to avoid the risks and losses arising from the undocumented delivery of goods. Improper, also ask each teacher to give advice.
【学位授予单位】：上海海事大学
【学位级别】：硕士
【学位授予年份】：2005
【分类号】：D922.294

【引证文献】