| The bill of lading is a document issued by the carrier or its agent after the goods have been handed over to the carrier to receive or loaded onto the ship by the shipper in accordance with the contract of international carriage of goods by sea reached in advance.The bill of lading is not only an important international maritime cargo transport document,but also an important international trade in goods documents.In practice,although the paper bill of lading is easy to transfer,but the low efficiency of the flow often leads to disputes on delivery of goods without presentation of the original bill of lading and other issues.With the continuous development of network technology,the electronic bill of lading came into being and greatly enhance the efficiency of the bill of lading flow.After years of development,however,the usage of electronic bill of lading is still far less than the paper bill of lading.Closed system,high cost of use,low recognition and legal imperfections are gradually becoming important factors that hinder the development of electronic bill of lading.As a new technology,blockchain’s technical characteristics can help break the technical barriers of electronic bill of lading,enhancing the recognition of the electronic bill of lading.At present,the state is strongly encouraging the development of blockchain,blockchain bill of lading system is also in research.Based on this background,this paper intends to explore the legal issues that the blockchain bill of lading system may face in the existing legal system after being put into use in the future.This paper is divided into five chapters.Chapter 1 firstly briefly introduces the basic situation of blockchain,including the origin,classification and technical characteristics of blockchain.Secondly,this chapter defines the concept of blockchain bill of lading,analyses the advantages of blockchain bill of lading compared with traditional electronic bill of lading,and introduces the existing as well as under-construction blockchain bill of lading practices at home and abroad.After that,this chapter introduces the current environment for the development of blockchain bill of lading from both international and domestic perspectives.From the international point of view,shipping-related international organizations basically hold a supportive attitude towards the development of blockchain bill of lading;major shipping countries also support the development of blockchain through various schemes such as inter-governmental cooperation,formulation of blockchain-related laws and encouragement of blockchain industry development,creating a good international environment for the development and use of blockchain bill of lading.In China,the development of blockchain is currently receiving strong support from the government and the momentum of development is equally strong.However,under the current legal framework,the development of blockchain bill of lading will face certain legal problems,from the perspective of legislation,the blockchain bill of lading system first faces the problem of its unknown legal nature.The unclear legal nature of the electronic bill of lading to a certain extent restricts its market acceptance,accordingly,the promotion of the use of blockchain bill of lading will also face the problem of determining the legal nature of the blockchain bill of lading.In addition,the blockchain bill of lading system in operation needs to follow the legal provisions on data regulation and protection,but the relevant rules have not been perfected.From a judicial perspective,blockchain electronic bill of lading will mainly face problems related to the determination of the validity of evidence in future justice.Based on the using process and operation of the system,these three issues can be divided into two main categories,of which,“the legal nature of blockchain bill of lading” and“determining the evidential validity of blockchain bill of lading” belongs to the legal issues in the process of operation and circulation of blockchain bill of lading,while“regulation and protection in the cross-border data flow of blockchain bill of lading”belong to the legal issues of the operation of the blockchain bill of lading system.Therefore,at the end of this chapter,three issues are proposed to be studied in this paper,namely,firstly,the legal nature of blockchain bill of lading,secondly,the issue of determining the evidential validity of blockchain bill of lading,and thirdly,the issue of regulation and protection in the cross-border data flow of blockchain bill of lading.Chapter 2 mainly discusses the legal nature of the blockchain bill of lading,and puts forward the view that the legal nature of the blockchain bill of lading should still be a valuable security.First of all,as a manifestation of electronic bill of lading,blockchain bill of lading has the same three functions with electronic bill of lading,which are the receipt of goods,proof of contract of carriage and proof of delivery.In other words,blockchain,although from a certain extent changed the manifestation of electronic bill of lading,did not change the essence of electronic bill of lading.Secondly,the use of blockchain and relevant skills does not influence the legal nature of the blockchain bill of lading.On the one hand,the technical characteristics of the blockchain help the blockchain bill of lading better achieve three functions,on the other hand,the relationship between the blockchain smart contract and contract does not affect the determination of the legal nature of blockchain bill of lading.Thus,the legal nature of the blockchain bill of lading should be the same as the electronic bill of lading.Research from other nations mainly focus on whether blockchain bill of lading is consistent with the UNCITRAL Model Law of Electronic Transferrable Records,and use this as the legal basis of the legal nature of blockchain bill of lading.But currently in China’s Maritime Law and related laws,direct provisions on the legal nature of the electronic bill of lading,as well as the relationship between blockchain smart contract and legal contract are not clear.There are shortcomings in the legal provisions,which are urgent to be improved.On the other hand,the legal nature of bill of lading is based on the legislation provisions.Under China’s Maritime Law,however,document of title is not a legal nature provided by law,which arises confusions and actual losses in practice.Therefore,in the circumstance that the blockchain technology does not change the legal nature of electronic bill of lading,it is of highly necessity that the document of title be set as legal nature of all kinds of bills of lading in Maritime Law.Chapter 3 discusses the issue of legal recognition of electronic evidence of blockchain bill of lading from the perspective of maritime justice.With the development of blockchain technology,China has been vigorously developing the application related to the combination of blockchain and jurisdiction,and the construction and application of judicial blockchain is at the forefront of the international scene.Three Internet Courts have carried out experiments and trials related to judicial blockchain,which has provided practical experience for the introduction of blockchain in maritime jurisdiction.The research and development of blockchain bill of lading system has put forward a direct requirement for the introduction of blockchain in maritime jurisdiction.At present,the imperfections of electronic evidence in maritime judicial practice are mainly focused on legal recognition of the originality of electronic evidence.When the blockchain bill of lading is put into use,the evidence involved evolves from traditional electronic evidence to blockchain electronic evidence.Blockchain changes the recognition of originality,authenticity,relevance,legality and other aspects of electronic evidence,specifically in the areas of procedure for recognizing the originality of electronic evidence,self-certification of authenticity and relevance and other aspects.Therefore,it is necessary to explore the impact of blockchain technology on the legal recognition of electronic evidence.Beyond this,in the process of determining the validity of evidence of blockchain bill of lading in the future,several major issues will be mainly occurred,including jurisdictional court determination,evidence hearing and ways of fixing,judicial appraisal,notary service providers in the status of evidence determination.Chapter 4 discusses the regulation and protection of cross-border data flows of blockchain electronic bills of lading system.This issue arises against the background of the international community’s expression on the intention to support the cross-border flow of commercial data through international conventions,and the gradual strengthening of data regulation and protection in China in recent years.Internationally,countries have been supporting the cross-border data flow under certain conditions in their national laws in order to protect their own interests and national security.Whether in is the policy of the world’s leading countries,or the newly concluded regional free trade agreements,the trend of allowing countries to regulate and protect their national security in cross-border data flow is reflected.The data in blockchain bill of lading can basically be identified as commercial data,which is in line with the relevant provisions on cross-border data flows in regional free trade agreements such as CPTPP and RCEP,but the circumstances affecting public policy need to be considered for such data.However,there are currently imperfections in the provisions of international conventions.The scope of application of CPTPP and RECP is limited and insufficient to meet the global needs of blockchain bill of lading business.For the regulation and protection of data,China currently implements the localization of critical information infrastructure,data classification and grading,and the localization of key data storage system.Different from other industry data,Blockchain shipping data is consisted with enterprise data mainly,and has a wide range of data,including a variety of key data such as energy,transportation,finance and e-government as stipulated in China’s laws,which calls for a highly necessity of regulation and protection.For blockchain bill of lading data regulation and protection issues,the focus lies in the identification of critical information infrastructure for the blockchain bill of lading system,while the difficulty lies in the formulation of data classification and grading rules.The imperfection of these rules has caused the lack of data regulation and protection in the blockchain bill of lading at present.At the same time,the inadequacy of the regulatory system is also not conducive to the necessary regulation and protection of the cross-border data flow of the blockchain bill of lading system.Combined with the specific issues raised above,Chapter 5 mainly discusses the Chinese strategy in the process of developing blockchain bill of lading.Firstly,the legal system of blockchain electronic bill of lading in China should be actively improved.The improvement of the legal system needs to be carried out from two aspects,on the one hand,the value orientation of China’s blockchain legislation needs to be clarified.Distinguished from the expression of the protection of the rights and interests of private subjects under blockchain in those individual countries which applies English law through the trial of cases,China should make full use of blockchain technology to better protect the overall security of the market economy.On the other hand,the law needs to be improved from the specific legislative level,including the legal nature of the electronic bill of lading to be clarified in the Maritime Law,the connection of blockchain smart contracts with the Civil Code,the improvement of the relevant provisions on the usage and determination of blockchain electronic evidence,as well as the improvement of the laws on the regulation and protection of blockchain bill lading cross-border data flow.Secondly,in the choice of judicial path,maritime justice should introduce the Tianping blockchain,absorb the relevant standards and practices of the Internet Court for the determination of blockchain electronic evidence,and gradually build a maritime judicial blockchain to form a new judicial model of the whole process on the chain,in order to meet the judicial challenges brought by blockchain bills of lading.Finally,in the process of developing blockchain bill of lading,it is advisable for China to clarify its national interests,seek institutional synergy through the development of compatibility schemes,actively participate in the international cooperation of blockchain bill of lading,promote the establishment of international standards for blockchain bill of lading,and improve the discourse of China’s participation in the formulation of international rules for blockchain bill of lading,so as to strive for a balance between domestic legislation and international rules,and protect the interests of enterprises,industries and the country. |
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