摘要
我國海商法於民國88年修正時，訂定海商法第77條：「載貨證券所載之裝載港或卸貨港為中華民國港口者，其載貨證券所生之法律關係依涉外民事法律適用法所定應適用法律。但依本法中華民國受貨人或託運人保護較優者，應適用本條之規定。」，學界對此多所評論，特別是就但書規定部分，多數學者認為所謂「保護較優」認定困難，將增添選法難度，增加法院之負荷及當事人訴訟之費用與時間，且保護對象僅限於我國受貨人及託運人，易引起爭議，不無欠缺合理性及國際性之嫌。 而民國99年5月26日修正公布之涉外民事法律適用法修正條文第43條則針對載貨證券法律關係訂定明確選法原則，本文以我國載貨證券決定準據法之法制為主軸，擬以介紹載貨證券制度之背景及其性質、效力為基礎，說明因載貨證券固有特性所衍生之爭議，再以海商法第77條、舊涉外民事法律適用法第6條及民國99年修正之涉外民事法律適用法第43條相關問題為核心，探究學界對上述規範之評釋、實務運作之情形，及學說與實務見解兩相印證下顯示之差異性。並希望透過外國立法例，包含重要國際公約及英、美等海事大國之海上貨物運送法之比較與對照，檢視我國法制是否符合國際通念，並探究在實務運作上，對於海事事件涉外且時效性強之特殊性，其他國家是否建立相當機制，以加速海事事件之紛爭解決。希望透過上述問題的研究與探討，就未來實務運作提出建議。
並列摘要
Maritime Act was amended in 1999. Article 77 provides that where the port of loading or port of discharge stipulated in the Bill of Lading is a port of ROC, the applicable law of any legal relationship arising under that bill of lading shall be determined according to the Code of Application of Law in Relation to Foreign-related Civil Matters. However, provided that this Code shall be applied in case any provisions in this Code provide a better and more favourable position to the shipper or consignee who is one with ROC nationality. There are diversified criticisms on Article 77, especially for the Supplementary Provisions, most scholars hold that it is hard to define " a better and more favourable position ", which will increase the difficulty of law selection, burden of the court, and legal fees and time of the party. Besides, the protected object is limited to the shipper and the consignee with R.O.C. nationality, which is easy to arouse repute and lack of reasonableness and internationality. As for Article 43, Law Governing the Application of Laws to Civil Matters Involving Foreign Elements amended in 2000, it regulated definite principles of law selection by aiming at legal relation of Bill of Lading. This thesis exerts the legal systems and institutions of Law of Bill of Lading as the axis, attempts to introduce the background, nature, and effect of system of Bill of Lading, in order to illustrate the disputes derived from characteristics inherent of Bill of Lading. Then, based on the related issues in Article 77, Maritime Act, Article 6, the pre-amendment Law Governing the Application of Laws to Civil Matters Involving Foreign Elements, and Article 43, the current Law Governing the Application of Laws to Civil Matters Involving Foreign Elements, this study explores the academic circle's interpretation and analysis of the abovementioned regulations, the practical operation, and the differences between theory and practice. To make a step further, via the preceding examples of legislation in foreign countries, including comparison and contrast of vital international conventions and Carriage of Goods by Sea Act of major maritime nations like U.S. and U.K., we hope to examine whether our legal systems and institutions are consistent with the universal rules used internationally right now. Also, with respect to practical operation, we expect to check whether other countries have set up considerable mechanisms to deal with foreign element with strong pressing and special-characterized properties. Finally, this research expects to propose recommendations for practices in the future by means of exploration and study of the previously mentioned issues.