提单物权性与货物所有权转移问题研究

发布时间：2018-06-08 06:20

本文选题：提单 + 货物　；参考：《上海海事大学》2006年硕士论文

【摘要】：提单的物权性问题在国内海商法学界历来富于争议(注：本文讨论的提单主要指指示提单和空白提单)，针对提单能否代表其项下货物的物权，学者们提出了“肯定说”和“否定说”。就“否定说”而言，由于它把提单权利全部归结为债权属性，故此说无法圆满的解释提单在贸易环节所具有的一些功能，比如提单的拟制交付和推定占有效力、通过提单可以向银行取得信用等。所以笔者认为提单物权性的“肯定说”更具合理性，而且提单所代表的物权应该是占有权。因为把提单的物权性定性为占有权能比较好的解释提单的物权性问题，更好的反映了提单贸易领域应用中的实际情况。认定提单是占有权凭证，其目的并非在割裂提单与货物的所有权之间的联系。相反的，在明确提单物权是占有权的基础上，才能将提单物权置入具体的法律背景中，以明了提单在普通法抑或在大陆法下提单物权与提单项下货物的所有权有着哪些区别与联系，分析提单法律行为与货物的所有权转移存在什么样的相互作用。在英国法下，货物所有权的转移以当事人的合意为生效要件。所以买卖当事人之间，提单项下货物的所有权在当事人意图转移的时候才由卖方转移至买方，买方不能仅以其受让提单来主张其享有货物的所有权。此时提单表彰的占有权与货物所有权转移的关系并不密切。但提单项下的货物往往在装船后至到达目的港前已被多次转让，而这些转让都是通过提单来进行的，买受人往往无法判断出让人对提单项下货物是否具有完好的所有权。为了鼓励交易加速流通，英国的1979年《货物买卖法》、《1889年代理法》以及一系列相关的判例都强调了提单所表彰的对其项下货物的占有权的意义，规定了多种情形，使得善意受让提单的货物买受人可以通过提单所表彰的占有权得到货物完好的所有权。在这种情况下，提单占有权对货物所有权转移的效力就被体现出来。在大陆法系下，提单所表彰的占有权与货物所有权转移的关系主要体现在两个方面。一是交付，即通过转让提单将提单表彰的对货物的占有权转让给买受人，，在提单货物的买卖中，交付提单就等同于交付货物；二是占有，占有提单等同于占有货物，相关当事人得主张占有的推定力与公信力。从交付来讲，在采用动产所有权转让意思
[Abstract]:The property right of bill of lading has always been controversial in the field of maritime law. (note: the bill of lading discussed in this paper mainly refers to the bill of lading and blank bill of lading, as to whether the bill of lading can represent the real right of the goods under the bill of lading. Scholars have put forward "affirmation theory" and "negation theory". As far as "negation theory" is concerned, because it ascribes the rights of bill of lading to the attribute of creditor's rights, it can not satisfactorily explain some functions of bill of lading in the trade link. For example, the bill of lading can obtain credit from the bank by making delivery and presumptive possession of the bill of lading. Therefore, the author thinks that the affirmation of bill of lading is more reasonable, and the real right represented by bill of lading should be the right of possession. Because the property right of bill of lading is defined as possession power to explain the property right of bill of lading, it better reflects the actual situation in the application of bill of lading in the field of bill of lading. Its purpose is not to separate the link between the bill of lading and the ownership of the goods. On the contrary, on the basis of making clear that the real right of bill of lading is the right of possession, the real right of bill of lading can be put into the specific legal background. In order to understand the differences and connections between the title of the bill of lading and the goods under the bill of lading under the common law or the continental law, This paper analyzes the interaction between the legal act of bill of lading and the transfer of ownership of goods. Under English law, the transfer of ownership of goods takes the consent of the parties as the effective condition. Therefore, between the buyers and sellers, the ownership of the goods under the bill of lading is transferred from the seller to the buyer only when the parties intend to transfer, and the buyer cannot claim the ownership of the goods solely on the basis of the bill of lading assigned to him. At this time, the recognition of the possession of the bill of lading and the transfer of ownership of goods is not closely related. However, the goods under the bill of lading are often transferred many times after shipment to the port of destination, and these transfers are carried out through the bill of lading, and the buyer is often unable to determine whether the goods under the bill of lading have good ownership. In order to encourage the accelerated circulation of transactions, the British Sale of goods Act 1979, the rational Law of the 1889's and a series of relevant jurisprudence all emphasize the significance of possession of the goods under its heading as recognized by bills of lading, and provide for a variety of circumstances. So that good-faith bill of lading buyer of goods through the bill of lading recognition of possession to obtain good ownership of the goods. In this case, the effect of possession of bill of lading on the transfer of ownership of goods is reflected. In the civil law system, the relationship between the right of possession recognized by bill of lading and the transfer of ownership of goods is mainly reflected in two aspects. One is delivery, that is, the right of possession of the goods recognized by the bill of lading is transferred to the buyer through the transfer of the bill of lading. In the transaction of the bill of lading, the delivery of the bill of lading is equivalent to the delivery of the goods; second, possession of the bill of lading is equivalent to possession of the goods, The presumption and credibility of Zhang's possession. In the case of delivery, the transfer of title to movable property
【学位授予单位】：上海海事大学
【学位级别】：硕士
【学位授予年份】：2006
【分类号】：D912.29

【引证文献】