| Advanced B/L and anti-dated B/L are one typical kind of maritime frauds that often occur in marine business. In recent years, such cases have taken place so often that they severely disturbed normal ocean shipping economic order in our international economic and business practice. According to our law ,only when the goods have been loaded on board , shall the carrier issue an "on board " bill of lading---which is the carrier's legal duty required by the international conventions, international usual practices and laws. A bill of lading that is issued by the carrier to the consigner before the goods have begun to be put on board or have finished being put on board in order to get the money constitutes an advanced bill of lading; while a bill of lading that is issued after the goods have been loaded on board but marked a date earlier than the actual date of loading is called an anti-dated bill of lading.In judicial theory and practice circles there are different views on the nature of the advanced B/L and anti-dated B/L and the resulting legal liability. This article aims to explore the legal nature of the advanced B/L and anti-dated B/L, the resulting legal liability, the related law system's deficiency and improvement and some related issues. Objective comments are made on the different views with reference to the regarding codes as well as relevant judicial interpretations. The author will also raise her own viewpoint on how to strengthen guarding and the legalization relating to bill of lading cases.This article can be divided into four chapters. The first chapter : the panorama on advanced B/L and anti-dated B/L. Firstly, the author analyzed the definitions and the similarities and differences between them, and then, stated the existing reasons and harms in reality, at last introduced the relating prescriptions internationally and domestically.The second chapter: the legal nature of the advanced B/L and anti-dated B/L. The question of whether an advanced B/L and anti-dated B/L are a breach of contract or falls under tort must be answered first to determine civil liability. From the provisions of the General Principles of Civil Law and the Contract Law in respect of breach of contract and the constitution of tort and relevant basic theory, the action of advanced B/L and anti-dated B/L confirms to the constitution of tort and of breach of contract. Therefore, the act of advanced B/L and anti-dated B/L constitutes concurrence of liability for breach of contract and liability for tort, the aggrieved part can choose the way the liable party should bear the liability. The doctrine that liability for advanced B/L and anti-dated B/L is liability for breach of contract in fact denies that such an actalso constitutes tort and the doctrine that liability for advanced B/L and anti-dated B/L result in liability for tort denies that such an act also constitutes a breach of contract. Neither of these views is well— grounded nor complies with the facts.The third chapter: legal liability for Advanced B/L and Anti-dated B/L. There is practical and theory meanings on the discussion over the legal nature because whether it is determined as breach of contract, or tort, or concurrence of liability will result in different legal effects on the issues of evidence responsibility, time limitation, the determination of jurisdiction, law usage and so on. Furthermore, it will influence the cases' judgment and verdict. Regarding the issues on how to deal with and solve the liability concurrence, the civil and business law circle inside and outside China has several theories such as "provision concurrence", "the requesting right concurrence"^ "tort provision concurrence" , restricted choosing lawsuit institution and so on . In practice, the parties are often allowed to choose one favorable gist to go to court. This article analyzed that it is usually more favorable for the victim to go to court with the gist of breach contract .The infringed party is obliged to prevent the loss from aggravating whether the party liable is to be held liable for breach of contract or tort. Different choices only mean different ways to realize the goal of getting damage compensation.The forth chapter: the law system's deficiency and improvement in China. Chinese Supreme Court adopted American law's material standard on B/L fraud. The deficiency is that at present there is not any law about B/L business and its fraud and the system of keeping it away is not perfect. The author bring forward some comparably better guarding projects and provide with some legislation suggestions on how to prevent and control marine frauds. Marine frauds legislation is indispensable and must possess leading character, our country should establish a especial code and remedying measures with regard to marine frauds. We should pay attention to the strict coherence with the concerning codes inside and outside our country, and promote the shape of convention on the rules of B/L, boosting the prosperity of the world's trade and the related industries with one mind. |
