Study On The System Construction In China Of Document Of Title For Bill Of Lading In The Expectant Right Dimension

How to define the phrase "Document of title" for Bill of lading in China is a confusing problem. Scholars have disputes not only on the security character of B/L, but also on the specific type of real right related to Document of title for B/L. In order to give the mentioned phrase a proper Chinese name and construct the concerning system in a reasonable and practical way, the article makes the analysis in three parts:The first part is called as "Illuminating the Bill of Lading in China under the Context of Document of Title". Based on regulations and theories in China, it comes to the conclusion that in China under that specific context, the Bill of lading is characterized as security and narrowed as Shipped B/L, which should contain both Negotiable and Non-negotiable B/Ls.The second part is "Dominant Theories on Document of Title for Bill of Lading in China and Related Inspiration". After analyzing the dominant theories in China, including negative theory, ownership theory, possession right theory and phase theory, it occurs to the author that a person who usually exercises the Document of title reflected by B/L, originally prefers to take possession of the mentioned goods in B/L and finally expects to own them; besides, the tools could be utilized to construct the related system are creditor's right and real right.The third part is named as "Expectant Right Mode of Document of Title for Bill of Lading in China". Since the analysis of the probability to construct a relatively perfect system of Document of title for B/L in China, the author affirms the chance for China to do so and suggests it under the guidance of security-orientation, nativism and realism. Accordingly, the author advocates conducting the construction in the "expectant right" dimension, which regards the behavior concerning B/L as conditional legal act. The legal B/L bearer has the right to expect to possess the related goods until the carrying ship arrives at the destination port and the consignee can receive the goods. What is more, the ultimate definition of Document of Title for B/L depends on its particular background:under the background of sale contract, it is defined as expectant right for ownership; under the background of pledge contract, it is defined as expectant right for pledge.In addition, because of the strong similarity to advance notice registration, the mentioned expectant right mode is likely to be recognized by the Chinese legislation. It is also revealed in the article that the expectant right mode has the advantages on the aspects of regulation structure and right protection, making it valuable in explaining the regulation logic and guiding the jurisdictional judgment.