Research On Harmonization Of Certain Rules Of Warehouse Receipts Finance

As a commercial document,warehouse receipts can facilitate transactions,increase finance for users,and benefit the efficient conduct of trade.In order to develop a warehouse receipt finance system adapted to modern commercial developments and technological advances,UNCITRAL and UNIDROIT cooperated in the adoption of the Model Law on Warehouse Receipts.From the research perspective of the Model Law on Warehouse Receipts,this paper studies and analyzes the legal issues involved in warehouse receipt financing transactions.Chapter Ⅰ points to the need for a Model Law on Warehouse Receipts.First,warehouse receipt financing transactions have the advantages of facilitating transactions and increasing enterprises’ access to funds for financing.With the support of new technologies such as blockchain technology,modern warehouse receipt financing transactions have entered the road of electronic,and the traditional warehouse receipt financing rules need to be updated to better avoid new risks and give full play to the advantages of warehouse receipt financing transactions.Many international organizations have put forward suggestions and guidelines on warehouse receipt legislation and reform,but their focuses are different,and cannot fully cover the rules for warehouse receipt financing transactions,nor can they meet the needs of harmonization of warehouse receipt rules.Therefore,basing on the Model Law on Secured Transactions and the Model Law on Electronic Negotiable Records,the adoption of the Model Law on Warehouse Receipts would help States to improve their legal systems for warehouse receipts and enhance international harmonization of laws to facilitate cross-border transactions.Chapter Ⅱ examines the fundamental issues of the Model Law on Warehouse Receipts legislation,starting with the definition,legal nature and classification of warehouse receipts.Under the Model Law on Warehouse Receipts,warehouse receipt financing transactions are based on warehouse receipt’s nature as a document of title,which enables the disposal of the goods,the disposition of the warehouse receipt and the goods covered by it in normal commercial dealings and the creation of a security right in the warehouse receipt to obtain finance.Warehouse receipts can be divided into negotiable warehouse receipts and non-negotiable warehouse receipts.Different transfer rules apply to different kinds of warehouse receipts,and different legal effects occur.The lack of regulation of document of title under Chinese Civil Code has arisen different opinions in judicial practice and theory.The legal effect of the document of title faces a conflict between the value of the commercial transaction and the regulating requirements of the document of title,and its legal effect should be stipulated from the perspective of commercial law.Therefore,it is advisable to clarify that the document of title represents the indirect possession of movable property,and the delivery of the document of title actually produces the legal effect of the movable property covered by the document of title.Chapter Ⅲ analyses the transfer of warehouse receipts,the form and content requirements for warehouse receipts when issuing warehouse receipts,and how to deal with lost warehouse receipts,and also studies the manner in which the warehouse receipt is transferred,the validity of the warehouse receipt holder after the transfer,and the warranty of the transferor.The Model Law on Warehouse Receipts aims to promote the use of warehouse receipts by providing that the absence of information on warehouse receipts does not affect its validity,but that warehouse operators are liable for losses resulting therefrom.Upon the transfer of the warehouse receipt,the transferee of the warehouse receipt acquires the same rights as the transferor in the warehouse receipt and the goods covered therein.The protected holder of a negotiable warehouse receipt that satisfies certain conditions may acquire the above rights and shall be protected from claims or defenses by the warehouse operator or others.The transferor is required to guarantee the authenticity of the warehouse receipt,his absence from any facts that would impair the validity of the warehouse receipt and the value of the goods covered thereby,and the transfer’s validity.Chapter Ⅳ analyses the security rights in warehouse receipt financing transactions and compares the provisions of Chinese law.The rules on security rights are the core rules for warehouse receipt financing transactions,and are governed by the Model Law on Secured Transactions.The Model Law on Secured Transactions includes the creation,perfection,priority and enforcement rules of security rights and implements functionalist legislation on security in movable property.In particular,with respect to priority rules,the secured creditors’ priority is determined by the general rule of ‘first to be effective against third parties,first to be paid’,and the supplementary special rules for warehouse receipts as negotiable documents.China regulates the security rights in warehouse receipts under the security law of Civil Code.The security rights in warehouse receipts are governed by special rules and rules for the security interests in movable property.Influenced by the functionalist legislation of movable property security,the Civil Code of China has moved from formalist legislation to the combination of formalism and functionalism in the transfer of the security system,and has laid the foundation for unifying the rules of priority of movable property security.However,the publicity effectivity doctrine of pledge of movables and pledge of rights is incompatible with the publicity adversarial doctrine adopted in other movable property security.Accordingly,security of movables cannot be regulated by unified security rules,which will result in the difficulty in identifying the creation and priority issues of pledge in practice.Warehouse receipt pledge is a kind of pledge of right cannot avoid the above challenges.It is difficult for China to adopt the rules of the Model Law on Warehouse Receipts in terms of warehouse receipt security rules in the short term,and in view of the importance and particularity of warehouse receipt financing transactions,it is appropriate to provide for its priority rules in judicial interpretations specially.Chapter 5 analyses the rights,obligations and liabilities of warehouse operators.Warehouse operators play an important bridging role in warehouse receipt financing transactions,and the Model Law on Warehouse Receipts sets out their duty of care in the custody of the goods,obligation to store and return the goods,places the necessary limitations on their rights to terminate the warehousing contract and sets out the scope of lien.