FOB条件下卖方的货物控制权问题研究
发布时间：2018-08-04 12:28
【摘要】： FOB条件下的贸易欺诈已经引起了广泛的关注,与此相关的文章也非常多,这至少说明研究这个问题本身是有意义的,但同时也说明要在这个问题上有所突破是比较困难的,而笔者在学习联合国贸易法委员会第三工作组正在制定中的《[全程或部分][海上]货物运输公约草案》时发现,其实FOB条件下卖方的贸易风险正是由于其过早的丧失了对货物的控制权,由此想到以此为题,将货物控制权与FOB结合起来进行讨论,我国海商法律方面并无货物控制权的规定,将货物控制权写入我国海商法也是许多学者的愿望,如果立法过程中能将货物控制权与FOB术语结合起来进行考虑,产生的效果可能会更好。 本文的第一章主要对本文涉及的概念做一个简要的介绍,包括货物控制权和FOB术语的含义及其特点.该章第一节通过货物控制权与中途停运权的比较,明确货物控制权制度的目的及其特点,从而显示其对于FOB条件下卖方的重要意义;第二节在介绍FOB术语特点的基础上,对FOB条件下的贸易欺诈进行了分析,从而明确造成卖方风险的关键在于FOB条件下的卖方在未获取付款之前过早地失去了对货物的控制权。 第二章和第三章是本文的重点。有关FOB条件下卖方的货物控制权,笔者主要是从两种制度出发进行论述,一是货物控制权制度,二是提单制度。贯穿其中的则是国际货物买卖合同与海上货物运输合同的密切关系。在第二章中,笔者一方面从FOB贸易术语和货物控制权的制度设计出发,从正面论证卖方应该享有货物控制权。另一方面从海上货物运输合同的角度,认为FOB条件下的卖方不应被排除在运输合同当事人之外,从而从反面论证否认FOB条件下卖方货物控制权的理由不能成立。第三章则是从提单的签发及记载方面论述如何保障FOB条件下的货物控制权并对上述UNCITRAL《草案》的相关规定进行了分析,得出的结论是FOB条件下的卖方有权获取实际承运人签发的提单并在提单上表明其托运人身份。 第四章则是在前文论述的基础上对我国的相关立法提出自己的一点建议。
[Abstract]:Trade fraud under the FOB condition has attracted extensive attention, and there are many related articles. This at least shows that it is meaningful to study this problem, but it also shows that it is difficult to make a breakthrough on this issue. While studying the draft Convention on the Carriage of goods [wholly or partly] [by Sea] that is being developed by working Group III of the United Nations Commission on International Trade Law (UNCITRAL), In fact, under the condition of FOB, the seller's trade risk is precisely due to its premature loss of the control right to the goods. Therefore, it comes to the idea that the right of control of the goods should be combined with the FOB for discussion. There is no regulation of the right of control of the goods in the maritime commercial law of our country. It is also the wish of many scholars to write the right of control of goods into the maritime law of our country. If we can combine the right of control of goods with the term of FOB in the process of legislation, the effect may be better. The first chapter gives a brief introduction to the concepts involved in this paper, including the meaning and characteristics of the term "control right of goods" and "FOB". The first section of this chapter clarifies the purpose and characteristics of the control system of goods through the comparison between the right of control of goods and the right of stoppage in midway, so as to show its significance to the seller under the condition of FOB. The second section introduces the characteristics of FOB terms. This paper analyzes the trade fraud under the FOB condition and makes it clear that the key to the seller's risk is that the seller under the FOB condition loses the control right of the goods prematurely before the payment is obtained. The second and third chapters are the focus of this paper. About the seller's right of control of goods under the condition of FOB, the author mainly discusses from two systems, one is the system of control of goods, the other is the system of bill of lading. There is a close relationship between the international contract for the sale of goods and the contract for the carriage of goods by sea. In the second chapter, on the one hand, the author starts from the system design of FOB terms and the right of control of goods, from the positive argument that the seller should enjoy the right of control of goods. On the other hand, from the point of view of the contract of carriage of goods by sea, the seller under the FOB condition should not be excluded from the contract of carriage, so the reason of denying the seller's right of control of the goods under the FOB condition can not be established. The third chapter discusses how to protect the right of control of goods under the condition of FOB from the aspect of issuance and record of bill of lading, and analyzes the relevant provisions of the above-mentioned draft of UNCITRAL. The conclusion is that the seller under the condition of FOB has the right to obtain the bill of lading issued by the actual carrier and to identify his shipper on the bill of lading. The fourth chapter is on the basis of the previous discussion on the relevant legislation of our country put forward some suggestions.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2008
【分类号】：D996.1
本文编号：2163882
[Abstract]:Trade fraud under the FOB condition has attracted extensive attention, and there are many related articles. This at least shows that it is meaningful to study this problem, but it also shows that it is difficult to make a breakthrough on this issue. While studying the draft Convention on the Carriage of goods [wholly or partly] [by Sea] that is being developed by working Group III of the United Nations Commission on International Trade Law (UNCITRAL), In fact, under the condition of FOB, the seller's trade risk is precisely due to its premature loss of the control right to the goods. Therefore, it comes to the idea that the right of control of the goods should be combined with the FOB for discussion. There is no regulation of the right of control of the goods in the maritime commercial law of our country. It is also the wish of many scholars to write the right of control of goods into the maritime law of our country. If we can combine the right of control of goods with the term of FOB in the process of legislation, the effect may be better. The first chapter gives a brief introduction to the concepts involved in this paper, including the meaning and characteristics of the term "control right of goods" and "FOB". The first section of this chapter clarifies the purpose and characteristics of the control system of goods through the comparison between the right of control of goods and the right of stoppage in midway, so as to show its significance to the seller under the condition of FOB. The second section introduces the characteristics of FOB terms. This paper analyzes the trade fraud under the FOB condition and makes it clear that the key to the seller's risk is that the seller under the FOB condition loses the control right of the goods prematurely before the payment is obtained. The second and third chapters are the focus of this paper. About the seller's right of control of goods under the condition of FOB, the author mainly discusses from two systems, one is the system of control of goods, the other is the system of bill of lading. There is a close relationship between the international contract for the sale of goods and the contract for the carriage of goods by sea. In the second chapter, on the one hand, the author starts from the system design of FOB terms and the right of control of goods, from the positive argument that the seller should enjoy the right of control of goods. On the other hand, from the point of view of the contract of carriage of goods by sea, the seller under the FOB condition should not be excluded from the contract of carriage, so the reason of denying the seller's right of control of the goods under the FOB condition can not be established. The third chapter discusses how to protect the right of control of goods under the condition of FOB from the aspect of issuance and record of bill of lading, and analyzes the relevant provisions of the above-mentioned draft of UNCITRAL. The conclusion is that the seller under the condition of FOB has the right to obtain the bill of lading issued by the actual carrier and to identify his shipper on the bill of lading. The fourth chapter is on the basis of the previous discussion on the relevant legislation of our country put forward some suggestions.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2008
【分类号】：D996.1
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