Initial Exploration Into Shift Of Real Right Included In B/L Under The Context Of Theory Of Juristic Act Of Real Right

In fact the juristic act of real right is a kind of disposing acts,and the act of disposing rights is also a kind of real right acts,so we can analyze the transfer of right by the thinking of Theory of Juristic Act of Real Right(hereinafter Theory).The transfer of property right included in the bill of lading(hereinafter B/L) is usually interpreted as an indicative delivery,that is,the transfer of claim of restitution substitutes the transfer of actual possession of goods.However,in the context of Theory,by analogy to real right acts,notice of transferor to the debtor in the indicative delivery is the transfer of"possession of right",also the delivery of right,which is real right act finally leading to the shift of the right.The circulation of B/L leads to the transfer of real right without notifying the carrier, which determines the transfer of property right of B/L can not be an indicative delivery.Transfer of property right included in B/L should be recognized as a new method of delivery:draft system delivery.This is not only the solution to the legal dilemma caused by the separation of documents and goods under B/L or other documents of title,but also meets the realistic need of right-securitization.The B/L bears the spirit of commerce law which lies in Rechtsscheintheorie' and Non-causa,and the draft system delivery of B/L embodys the spirit of commerce law.Reasons for using Theory to discuss B/L is that Theory is compatible with the spirit of commerce law,for its thinking is actually Non-causa leading by Rechtsscheintheorie.