论提单的要因性

Discussion on the unconditionality of bill of lading

大陆法系的通说认为提单是要因证券。但在中国,不少学者主张提单的无因性,理由不一而足。经逐一辨析,这些观点均不值得提倡。判断提单是要因证券还是无因证券,应以提单上所表彰的已证券化的基于运输合同而产生的债权与运输合同之间的关系为考察对象。据此,提单应为要因证券,但在流通过程中因兼具文义性,而发生部分无因化。

The dominating theory of continental legal system deems bill of lading conditional securities. However, in our country, not a few scholars, based on various reasons, are of the view that the bill of lading is unconditional upon the basic legal relationship. All the above opinions are not satisfactory. The conditionality or unconditionality of the B/L should be judged from the relationship between the securitized transportation contract creditor＇ s right as shown on the B/L and the transportation contract itself. Accordingly, B/L is conditional securities, while accompanying the circulation it will become context securities and therefore become partially unconditional.