BOLERO电子提单若干法律问题研究
发布时间：2019-05-21 09:01
【摘要】： BOLERO是Bill Of Lading for Electronic Registry Organization的简称,是环球银行财务通讯协会(SWIFT)和海运业者的再保团体联合运送俱乐部(TT Club)于1998年初组建一个合资服务公司。它将《国际海事委员会电子提单规则》、数字签名和权利登记中心相结合,是一套旨在为国际贸易尤其是航运单据提供电子化服务的系统。经试运行后,效果良好,因此于1999年9月27日正式投入运行。 BOLERO.NET最重要的服务项目有核心商务平台和所有权档案服务。前者确保所有贸易文件的交易讯息能够安全传递至讯息接收者,后者的主要功能是为电子提单提供线上监控契约及货物所有权移转的服务。 BOLERO虽然在世界上许多国家获得了巨大成功,但是它对于中国的大多数企业还是一个新生事物,目前只有为数不多的企业成为BOLERO系统的会员。提单电子化虽然是未来贸易和航运发展的必然趋势,但它毕竟冲击着传统的国际贸易方式和原有的相关立法。本文的目的正是研究在引入BOLERO模式电子提单后我国现有的民法,合同法,海商法,证据法以及法学理论与BOLERO模式的几个冲突而引发的问题。 本文主要内容及研究结论如下: WP=4 第一章主要介绍电子提单的定义、电子提单的立法实践和商业实践,并重点介绍BOLERO电子提单的历史背景、具体运作模式和相对于其他电子提单的优点,以期对BOLERO电子提单有一个宏观的认识。 第二章是全文的核心部分。提单所表彰的权利性质历来是学术界争论的焦点。本章从介绍传统提单所表彰权利性质的几种学说入手,用排除法和“功能等同性原理”结合传统民法理论对传统提单和电子提单的异同进行比较分析,旨在探讨BOLERO电子提单所表彰的权利性质。结论为BOLERO电子提单所表彰的权利性质以“代表说”来解释最为合理,即承运人具有货物的直接占有权,提单持有人具有间接占有权。提单的转移是货物间接占有权的转移,它本来应依民法规定办理转移手续,而在此种场合下之所以不要办手续,是因为提单是货物的代表。提单的转让是否转让货物所有权,对承运人而言,并没有太大的影响。 第三章从海事国际私法的一般原则入手,将海运提单的共性和BOLERO系统的特性相结合,分析有关国际条约、国际惯例、内国法强行性规则、当事人意思自治和最密切联系原则适用于BOLERO电子提单债权关系的序列,以期探讨BOLERO电子提单债权关系的准据法问题。 第四章主要通过对英美法系和大陆法系的立法比较,从法律实务角度,探讨在国内诉讼法正式赋予电子提单与书面提单具有同等法律效力之前,在国内国外的法律环境中如何保证BOLERO电子提单证明力的问题。
[Abstract]:BOLERO, the abbreviation of Bill Of Lading for Electronic Registry Organization, is a joint venture service company between (SWIFT), a financial communications association of global banks, and (TT Club), a joint shipping group of shipping operators, in early 1998. It combines the International Maritime Committee Electronic Bill of Lading rules, digital signatures and rights registration centers, and is a set of systems designed to provide electronic services for international trade, especially shipping documents. After trial operation, the effect was good, so it was officially put into operation on September 27, 1999. The most important service items of BOLERO.NET are core business platform and ownership file service. The former ensures that the transaction information of all trade documents can be safely transmitted to the recipient of the message, while the main function of the latter is to provide online monitoring of contracts and transfer of ownership of goods for electronic bills of lading. Although BOLERO has achieved great success in many countries in the world, it is still a new thing for most enterprises in China, and only a small number of enterprises have become members of BOLERO system at present. Although electronic bill of lading is the inevitable trend of trade and shipping development in the future, it impacts the traditional international trade mode and the original relevant legislation after all. The purpose of this paper is to study the existing civil law, contract law, maritime law, evidence law and several conflicts between legal theory and BOLERO model after the introduction of BOLERO mode electronic bill of lading. The main contents and research conclusions of this paper are as follows: the first chapter of WP=4 mainly introduces the definition of electronic bill of lading, the legislative practice and commercial practice of electronic bill of lading. The historical background, concrete operation mode and advantages of BOLERO electronic bill of lading compared with other electronic bills of lading are introduced in order to have a macro understanding of BOLERO electronic bill of lading. The second chapter is the core part of the full text. The nature of the rights recognized in the bill of lading has always been the focus of debate in academic circles. Starting with the introduction of several theories about the nature of the rights recognized in the traditional bill of lading, this chapter compares and analyzes the similarities and differences between the traditional bill of lading and the electronic bill of lading by using the exclusion method and the principle of functional equivalence combined with the traditional civil law theory. The purpose of this paper is to explore the nature of the rights recognized in BOLERO electronic bill of lading. The conclusion is that the nature of the rights recognized by BOLERO electronic bill of lading is most reasonable explained by "representative theory", that is, the carrier has the direct possession of the goods and the holder of the bill of lading has the indirect possession. The transfer of bill of lading is the transfer of indirect possession of the goods, which should have gone through the transfer formalities in accordance with the provisions of civil law, and the reason why the bill of lading should not go through the formalities in this case is because the bill of lading is the representative of the goods. Whether the transfer of bill of lading transfers ownership of the goods does not have much impact on the carrier. The third chapter, starting with the general principles of maritime private international law, combines the commonness of maritime bill of lading with the characteristics of BOLERO system, and analyzes the relevant international treaties, international practice and domestic law enforcement rules. The principle of party autonomy and the closest relationship is applicable to the sequence of BOLERO electronic bill of lading claims, in order to explore the applicable law of BOLERO electronic bill of lading creditor's rights. The fourth chapter mainly through the legislative comparison between the common law system and the civil law system, from the legal practice point of view, discusses before the domestic procedural law formally gives the electronic bill of lading and the written bill of lading the same legal effect. How to ensure the proof power of BOLERO electronic bill of lading in the domestic and foreign legal environment.
【学位授予单位】：华东政法学院
【学位级别】：硕士
【学位授予年份】：2004
【分类号】：D99
本文编号：2481984
[Abstract]:BOLERO, the abbreviation of Bill Of Lading for Electronic Registry Organization, is a joint venture service company between (SWIFT), a financial communications association of global banks, and (TT Club), a joint shipping group of shipping operators, in early 1998. It combines the International Maritime Committee Electronic Bill of Lading rules, digital signatures and rights registration centers, and is a set of systems designed to provide electronic services for international trade, especially shipping documents. After trial operation, the effect was good, so it was officially put into operation on September 27, 1999. The most important service items of BOLERO.NET are core business platform and ownership file service. The former ensures that the transaction information of all trade documents can be safely transmitted to the recipient of the message, while the main function of the latter is to provide online monitoring of contracts and transfer of ownership of goods for electronic bills of lading. Although BOLERO has achieved great success in many countries in the world, it is still a new thing for most enterprises in China, and only a small number of enterprises have become members of BOLERO system at present. Although electronic bill of lading is the inevitable trend of trade and shipping development in the future, it impacts the traditional international trade mode and the original relevant legislation after all. The purpose of this paper is to study the existing civil law, contract law, maritime law, evidence law and several conflicts between legal theory and BOLERO model after the introduction of BOLERO mode electronic bill of lading. The main contents and research conclusions of this paper are as follows: the first chapter of WP=4 mainly introduces the definition of electronic bill of lading, the legislative practice and commercial practice of electronic bill of lading. The historical background, concrete operation mode and advantages of BOLERO electronic bill of lading compared with other electronic bills of lading are introduced in order to have a macro understanding of BOLERO electronic bill of lading. The second chapter is the core part of the full text. The nature of the rights recognized in the bill of lading has always been the focus of debate in academic circles. Starting with the introduction of several theories about the nature of the rights recognized in the traditional bill of lading, this chapter compares and analyzes the similarities and differences between the traditional bill of lading and the electronic bill of lading by using the exclusion method and the principle of functional equivalence combined with the traditional civil law theory. The purpose of this paper is to explore the nature of the rights recognized in BOLERO electronic bill of lading. The conclusion is that the nature of the rights recognized by BOLERO electronic bill of lading is most reasonable explained by "representative theory", that is, the carrier has the direct possession of the goods and the holder of the bill of lading has the indirect possession. The transfer of bill of lading is the transfer of indirect possession of the goods, which should have gone through the transfer formalities in accordance with the provisions of civil law, and the reason why the bill of lading should not go through the formalities in this case is because the bill of lading is the representative of the goods. Whether the transfer of bill of lading transfers ownership of the goods does not have much impact on the carrier. The third chapter, starting with the general principles of maritime private international law, combines the commonness of maritime bill of lading with the characteristics of BOLERO system, and analyzes the relevant international treaties, international practice and domestic law enforcement rules. The principle of party autonomy and the closest relationship is applicable to the sequence of BOLERO electronic bill of lading claims, in order to explore the applicable law of BOLERO electronic bill of lading creditor's rights. The fourth chapter mainly through the legislative comparison between the common law system and the civil law system, from the legal practice point of view, discusses before the domestic procedural law formally gives the electronic bill of lading and the written bill of lading the same legal effect. How to ensure the proof power of BOLERO electronic bill of lading in the domestic and foreign legal environment.
【学位授予单位】：华东政法学院
【学位级别】：硕士
【学位授予年份】：2004
【分类号】：D99
【引证文献】
相关期刊论文 前1条
1 李秋娟;;论电子提单在国际贸易中的应用[J];对外经贸实务;2008年12期
相关硕士学位论文 前1条
1 刘钊;电子提单流转模式法律问题研究[D];大连海事大学;2011年
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