FOB术语下货代提单交付义务的实证分析

A practical study on freight forwarders' obligation of delivery of bills of lading in FOB terms

在使用FOB术语的国际贸易中,货运代理人(即货代)获得提单时,应如何对买卖合同的双方履行提单交付义务,是一个重要的实际问题。以司法实践中发生的与货代单证交付纠纷直接相关的判决为基础,对货代的提单交付问题进行实证分析与理论探究。这一问题的产生与中国货代市场的发展有着密切关系,而司法实践也体现了对本国货主的倾向性保护。同时,应当将货代合同认定为委托合同,并主张货代在一定条件下承担积极交单义务。

It is of practical importance to analyze how should a freight forwarder perform the obligation of delivery of the bill of lading acquired by it when a contract of international trade is entered into with FOB terms. This work,according to decided cases which directly related to the above-mentioned problem,would give a practical and theoretical discussion on such obligation. It has been noticed by this work that,this problem is strongly connected with the development of Chinese freight forward market and legal practice has proven that the obligation imposed on freight forwarders tends to protect national FOB sellers. It is further argued by this work that traditional civil law principle in commission contracts should apply to freight forwarding contracts and the freight forwarder＇s positive duty to deliver the B/L should be admitted.