无单放货研究

发布时间：2018-05-22 10:27

本文选题：无单放货 + 提单　；参考：《东北财经大学》2003年硕士论文

【摘要】： 无单放货是指承运人或其代理人、货物监管人没有凭正本提单交付货物的行为。由于现代科学技术在航海领域的广泛应用，船舶在海上运输的速度有了很大的提高。局限于传统的提单流程，常常出现船舶已到港而提单还未到收货人手中，这样经常造成堵港，甚至当事人的经济损失。为了解决这一系列矛盾，承运人经常面临无单放货的问题。本来，真正的货物所有人善意要求承运人无单放货，在疏港和保护当事人利益等诸多方面都起到了积极作用，但事实上，并非所有无单提货人都对货物拥有真正所有权，他们也并非均出于善意。有的可能因为经济困难，无力到银行赎单导致单证不能转到其手中；有的原本就存在欺诈意图而不去银行赎单。在这种情况下，因无单放货产生的海运纠纷便不断出现。由于我国《海商法》对提单的规定较为简单，对提单及货物的交付没有做出具体的规定，对凭保函交付货物也未做出明确的定性，导致司法界、学术界对与无单放货行为的定性及其相关问题一直存在争议，至今尚无定论，，长此以往，必然不利于外贸和航运事业的发展。基于此，本文认为，对无单放货问题进行深入地研究实属必要。本文开篇对无单放货的基本情况做一概述，介绍了无单放货的背景、产生的原因以及相关当事人。第二章重点探讨了无单放货的法律问题，对无单放货的违法性进行了辨析，对侵权说、违约说等主流观点进行了全面的介绍，并认为：由于提单在不同流通领域具有不同的功能，因此研究无单放货的性质也应由此出发；由于无单放货主要发生在运输交货环节，承运人违反了凭单交货保证，因此是一种违约行为，而非侵犯了收货人或提单持有人的物权权利。鉴于无单放货的责任归属问题直接关系到当事各方的利益且容易产生纠纷，本文在第三章对这一问题作了专门的说明，并对其免责情形作了详细总结。在无单放货的各种情形中，凭副本提单加保函提货是最有代表性的，由于无单放货的违法性质，导致海运保函的法律效力在理论界也存有争议，为此第四章对海运保函的性质和法律效力作了探讨，认为善意的海运保函应该受到法律保护。无单内容提要放货欺诈在无单放货案件中所占比重较小，但危害极大，严重破坏了正常的国际贸易和航运秩序，因此有必要加以防范，第五章重点针对这一情况作了论述。
[Abstract]:Non-documentary delivery refers to the failure of the carrier or his agent, the cargo supervisor, to deliver the goods on the original bill of lading. Because of the wide application of modern science and technology in navigation field, the speed of ship transportation at sea has been greatly improved. Limited to the traditional bill of lading process, it often appears that the ship has arrived at the port and the bill of lading has not yet reached the consignee, which often leads to the blocking of the port and even the economic loss of the parties concerned. In order to solve this series of contradictions, the carrier often faces the problem of delivery of goods without bill. Originally, the bona fide owner of the goods required the carrier to release the goods without a bill of lading, which played a positive role in many aspects, such as opening ports and protecting the interests of the parties, but in fact, not all the people who did not collect the goods had real ownership of the goods. Nor are they all well-intentioned. Some may be unable to get a bank foreclosure because of financial difficulties, while others may have fraudulent intent and do not go to a bank foreclosure. In this case, the shipping disputes arising from the release of goods without documents continue to appear. Because of the relatively simple stipulation of bill of lading in Maritime Law of our country, there is no specific regulation on the delivery of bill of lading and goods, and there is no clear characterization of the delivery of goods by guarantee, which leads to the judicial circle. There has been controversy in academic circles about the nature of goods delivery and its related problems, but there is no final conclusion yet. In the long run, it is unfavorable to the development of foreign trade and shipping industry. Based on this, this paper thinks that it is necessary to study the problem of non-bill delivery. At the beginning of this paper, the basic situation of undocumented delivery is summarized, the background, the causes and the relevant parties are introduced. The second chapter focuses on the legal issues of the delivery of goods without bill of lading, analyzes the illegality of the delivery of goods without bill of lading, and gives a comprehensive introduction to the mainstream views, such as the theory of tort, the theory of breach of contract, and so on. Because bill of lading has different functions in different circulation fields, it is necessary to study the nature of undocumented delivery, and because the delivery of goods without bill of lading mainly occurs in the delivery of transport, the carrier has violated the guarantee of delivery of goods by voucher. It is therefore a breach of contract rather than an infringement of the right in rem of the consignee or holder of the bill of lading. In view of the fact that the issue of the attribution of liability for the delivery of goods without documentary evidence is directly related to the interests of the parties and is prone to disputes, this paper makes a special explanation of this problem in Chapter 3 and makes a detailed summary of the circumstances of its exemption. In all kinds of cases where the goods are released without bill of lading, it is the most representative to pick up the goods on the basis of a copy bill of lading plus a guarantee. Due to the illegal nature of the delivery of the goods without a bill of lading, the legal effect of the maritime guarantee is also controversial in the theoretical circle. The fourth chapter discusses the nature and legal effect of the maritime guarantee, and holds that the bona fide maritime guarantee should be protected by law. No bill Executive summary Discharge fraud accounts for a small proportion of undocumented delivery cases, but it is extremely harmful and seriously undermines normal countries International trade and shipping order, so it is necessary to prevent, the fifth chapter focuses on this situation.
【学位授予单位】：东北财经大学
【学位级别】：硕士
【学位授予年份】：2003
【分类号】：F740.4

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