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The Legal Nature Of The Bill Of Lading - Of Several Legal Issues In The Delivery Of Goods Without

Posted on:2002-01-08Degree:MasterType:Thesis
Country:ChinaCandidate:X L LiFull Text:PDF
GTID:2206360032456694Subject:International Law
Abstract/Summary:PDF Full Text Request
The B/L plays an important role in the international trade, especially under the system of modem documentary sale, whose functions have been beyond the scope of shipping document, and does function only if the legal system of B/L has been established. In our country, the rules, in respect to B/L, have been set up in the CMC, 1992. In comparison with the practice and development of B/L, these rules seem not enough to direct the activity of international trade and shipping. In the thesis, the author try to review the character of B/L with a new sight, proposing the independence of legal system of B/L and the documentarization of the right relating to B/L, and providing a suggestion to establish a new legal relationship of B/L in China.First, the B/L can prove some facts, when it is regarded as a receipt of goods and a witness of contract of carriage of goods by sea, while the B/L will be a symbol, giving rise to some particular rights, when it is regarded as a document of title. Under the latter circumstance, the B/L can not be substituted by other documents and it functions beyond the shipping document. Secondly, the securitization of right meets the need for development of modem society and economic and make the movement of resource more fast and convenient. The documentanzation of right of B/L set the same trend and make the B/L develop from tradition toward modernization. The B/L抯 feature conclude: (1) The B/L and the rights which it embodies are capable of being transferred by delivery, either with or without endorsement, according to whether the B/L is in favor of order or bearer: an document thus transferred is said to be negotiated. (2) The person to whom the B/L is negotiated can sue on it in his own name. (3) The person to whom the B/L has been negotiated, who takes it in good faith and for value, obtains a good title to it, even though his transferor had a defective title or no title2at all. Thirdly, the viewpoint of losing of function of document of title, prevailing in the judicial circles in China, is not supported by the law in regard to B/L.The another important emphasis is focused upon the maritime judicial activity in China. In the field of international shipping, the expansion of contract seems more evident, the law bestow some contractual defenses and rights upon someone, not the party to the contract, by compulsory means. Accordingly, it is necessary to give them status in the proceedings, namely, the shipper or the holder of B/L can take proceedings against carrier on the basis of breach of the contract, as well as tort, but the choice is limited by the statutory rules. With regard to the problems in agency, the author raise two doubts: Is the carrier抯 agent who, without the permission of carrier in advance, deliver the goods to the person who can not present the B/L at the moment of delivery, held to exceed his authority? Is the agenVs delivery without presenting B/L regarded as breach of law, which is stipulated in the Civil Law Code?In the end, it is suggested to our legislation of the B/L that we should take the B/L as a instrument and make some rules in favor of the holder of B/L in good faith and for value, such as the system of negotiation of B/L and the system of registry of BIL.Focusing upon the character of BIL, the author hoped to exchange ideas with the judicial world in China and make an effort to establish and perfect the legal system of B/L in China.
Keywords/Search Tags:bill of lading, document, the function of document of title, carrier抯 delivery without presenting bill of ladingLi Lue-Ian (international economic law department)Directed by Yao Hong-xiu
PDF Full Text Request
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