无单提货的若干法律问题探析

【作者】 张萍；

【导师】 王伟；

【作者基本信息】 复旦大学 ， 法律， 2008， 硕士

【摘要】 无单提货指未凭正本提单提取承运货物,对承运人及其代理人、港口经营人而言就是无正本提单放货。提货人请求无正本提单提货是承运人无正本提单放货的导火线,“放”与“提”是同一过程的两方面。没有提货人提货的请求,放货缺少对象;没有承运人放货,提货人的提货目的不可能实现。一旦发生货物被无单提货,正本提单持有人往往起诉承运人,因为承运人是海上货物运输合同中的当事人,而忽视无单提货人的法律责任,使无单提货人可能在无单放货案中逃脱相应的法律责任。本文以无单提货人为主要研究对象,试图从无单提货人的角度来重新认识未凭正本提单而实际交付承运货物的行为。本文共分引言、正文五章及第六章结语。采取以定性研究为主,比较研究为辅的研究方法,从法律角度对无单提货若干问题进行阐述。引言对无单提货的概念进行简要解释,引出为何要研究无单提货。第一章提单的法律制度,简述提单的起源,然后分析提单的三大功能,尤其是提单的物权凭证功能。提单的物权凭证是决定提单是提货的唯一凭证。从而,决定凭正本提单提货是国际航运和国际海运基本原则。第二章无单提货的形式、成因、特点和危害,首先阐述无单提货的形式主要有凭提货保函提货、无担保提货和伪造提单提货。然后,对无单提货产生的原因进行分析。再进一步分析无单提货的特点及所造成的危害。第三章无单提货的法律性质,从无单提货人对正本提单持有人、承运人及保证人三方面论述无单提货人的法律性质。提出如果正本提单持有人是买卖合同的卖方,则享有买卖合同赋予的权利,但是依据主要是合同关系,无单提货人是违约。同时,合同关系的存在,也并不影响正本提单持有人物权主体的地位,他仍然可以凭提单起诉无单提货人侵权;无单放货人依据不当得益向无单提货人追偿;提货保函的担保人可以按照保函的约定向无单提货人追偿的论点。第四章无单提货保函的相对有效性,首先论述提货保函的概念,然后从提货人自己出具的保函、第三人出具的保函及提货人和第三人共同出具的保函来讨论无单提货保函的性质。其次,评价在实践中无单提货保函的作用及缺点。最后,探讨提货保函的相对有效性和条件。第五章无单提货的法律对策。无单提货发生之后,须尽快了解情况、及时采取海事诉讼保全等救济措施是非常重要,但事前的防范更为重要。电子提单的使用及加强从业人员的法律素养有望减少无单提货现象。第六章是结论。更多还原

【Abstract】 Taking delivery of goods without presentation original Bill of Lading (B/L) means the person who is not the original B/L holder to take delivery of goods. For the carriers, the agents of the carriers and the port operators, that is to say delivery of goods without original B/L. The person who is not the original B/L holder takes delivery of goods is a fuse of carrier to delivery of goods without original Bill of Lading. Therefore, "Taking delivery of goods" and "delivery of goods" are two sides of the process. The delivery of goods without original B/L would be lack of the objects without the requirements from the person who is not the original B/L. Meanwhile, it is impossible for the person who is not the original B/L holder to accomplish to taking delivery without the act of delivery of goods on the carrier. Once taking delivery of goods without original Bill of lading occurs, the original B/L holder tends to accuse the act of delivery of goods without original B/L on the carrier to neglect the legal responsibilities of the person who is not the original B/L holder, because the carrier is the party of the contract for the ocean transportation. The main object to research is the person who is not the original B/L holder, it’s try to perceive the act delivery goods without presentation original B/L in the views of the person who is not original B/L holder.This article includes a foreword, five chapters of body and a conclusion. This article adopts the research methods mainly by determine the nature and supplemented by comparing research. This article discusses taking delivery of goods without original B/L in the eyes of the law.Chapter one the basis legal system of B/L study the original of B/L and analysis the three major functions of B/L. In particular, the document of title of B/L is mentioned. The document of title decide the original B/L which is a sole document for taking delivery the goods. Therefore, taking delivery the goods against presentation original B/L is a principal of ocean shipping and international transportation.Chapter two legal forms, cause of formations, characteristics and endanger of taking delivery of goods without original B/L discuses mainly forms including taking delivery cargo against the letter of indemnity、taking delivery cargo without letter of indemnity and taking delivery with fake B/L. The article analyses the cause of the taking delivery goods without the original B/L. Furthermore, the chapter anayses the performances and dangers of taking delivery goods without the original B/L.Chapter three legal nature of taking delivery of goods without original B/L discusses the legal nature of taking delivery of goods without original B/L in views of the person who is not the original B/L holder versus the person who is the original B/L holder, the person who is not the original B/L holder versus carrier the person who is not the original B/L holder and the guarantee of the letter of indemnity. The article puts forward to the argument that the person who is not the original B/L holder breach of contract if the the person who is the original B/L holder is the seller of the contart, because the person who is the original B/L holder has right of the contract. Meanwhile, the person who is the original B/L holder is tort, the original B/L holder still have right to accuse the person who is the original B/L holder torts against the B/L. The carrier has the right to recourse the person who is not the original B/L holder against the unjustified bendfits. Furthermore, the guarantor of the letter of indemnity has right to recourse the person who is not the original B/L holder acccording to the terms of the letter of indemnity. Chapter four the letter of indemnity for delivery of goods without presentation original B/L di (?) cuss the conception of the letter of indemnity firstly. the article explains the legal nature of the letter of indemnity for delivery of goods without presentation original B/L in the views of the letter of indmnity issued by the person who is not original B/L holder、the letter of indmnity issued by the third party and the letter of indmnity issued by the person who is not original B/L holder and third party secondly. The article analyses the advantages and the disadvantage of the letter of indemnity for delivery of goods without presentation original B/L thirdly. Last but not the lest, the author probes into the relative efficiency of the letter of indemnity for delivery of goods without presentation original B/L.Charter five the countermeasures against taking delivery of goods without presentation original Bill of Lading. It is important to find out the situation and attach in remedy measures of maritime affairs as soon as possible upon the taking delivery of goods without presentation original Bill of Lading occured. However, the prevention of the taking delivery of goods without presentation original Bill of Lading occurred is more important. It is hopeful to reduce the taking delivery of goods without presentation original B/L by using electronic B/L and educating the legal culture to employees of this industry.Charter six come to the conclusion of thesis.更多还原