Properties Of Bill Of Lading

A bill of lading, as one of the most important documents today, has been occupying the core position in the international trading system and playing a vital role in all aspects of international trade. The bill of lading is not only accelerated the replacement pace of documents transaction to practices trading, but also speed the rapid development of international trade. In recent years, however, legal problems about the bill of lading have been emerging endlessly and the bill of lading disputes increasing. In many problems, the most important thing is that defining problem about the properties of the bill of lading. Hereto, opinions in theoretical field of Maritime Law are various and it cannot form a unified conclusion. Some scholars advocated that the bill of lading has the property of property rights. On the contrary, some scholars advocate that the bill of lading has the property of creditor's rights. The various views are multifarious and complicated. This situation often puzzled the beginners. Even for researchers on bill of lading system, it is hard to clarify the idea in a short time. Theoretical fuzziness caused great distress to the practice of judicial work and predicament of different sentence for same case often appears, seriously affected the authority and certainty of laws. Therefore, exploring the legal property of bill of lading appears urgent and particularly important.This article is divided into three chapters. The author conducts this gradually progressive and in-depth discussion of the property of the bill of lading from these three aspects.In the first chapter, the origin and development of the bill of lading and its definition are expounded from the overview of the bill of lading. This chapter is a brief introduction to basic contents of bill of lading, which underlay a theoretical basis for defining property of the bill of lading later.In the second third chapter, the bill of lading's property is defined, which is the main part and the core content of the article.In the second chapter, the view of bill of lading being property rights certificate is challenged firstly, including contents such as various theories of its property effect, rethinking on documents title of the bill of lading and viewing the relationship between bill of lading change and goods ownership change from rules of the real right. In this part, representative theories of bill of lading's effectiveness, such as absolute ownership theory, relative ownership theory and occupation theory, are briefly analyzed. It is thought that these theories have obvious defects. And then, the relationship of bill of lading change and goods ownership change is explored from the angle of changing rules of real right in every country. It is ensured that there is no necessary connection between them. Combined with the former two contents, viewpoint of bill of lading being property rights certificate is put forward reflections. Finally, conclusion of that bill of lading shall have no real right effect is obtained.The third chapter is discussion about creditor's rights property of bill of lading, including contents of relationship between bill of lading and carriage contract of sea goods, establishment of bill of lading's property effect and theory of its creditor's rights. In order to correctly understand the property effect of the bill of lading, the relationship between bill of lading and carriage contract of sea goods is firstly clarified in this part. It is thought that the bill of lading is proof of carriage contract of sea goods but it has its own independence. Then, through discussion, it is shown that establishment of bill of lading's property effect is the developing trend of the bill of lading. It is also accepted the existence of contractual relationship of bill of lading in field of maritime law. Finally, through analysis on various relevant theories of property effect of bill of lading, such as agency theory, contract transfer theory, third party interests contract theory and securities relationship theory, etc., shortages of these theories are pointed out and the author's own point of view is put forward at the same time. The author thinks that holder of the bill of lading enjoy the claim right of goods delivery under the terms of the bill of lading and can give more reasonable explanation by using principle of the new debt repayment. This concretely embodies in that bill of lading property is formed after the issuance of it. This new bill of lading property coexists with old contract property. Though they coexist at the same time, holder of the bill of lading must first request bill of lading debtor to fulfill the new bill of lading property and only when the new bill of lading property cannot be performed, claim right to old contract property can be performed then. If the bill of lading debtor performs the bill of lading property, the contract property becomes invalid. If the bill of lading debtor does not perform the bill of lading property, the contract property is still valid.