The physical trading of commodities in the international ** is based on the transfer of the right to the goods. Brian Zhu, Director of Legal Department, United Petrochemical Singapore
The word "right of goods" is not unfamiliar to the participants engaged in the first chain finance and movable property financing business in the market, but what is the right to goods? Is it a legal concept? Or is it a conventional concept? What is "cargo rights management"? What is the relationship between the two? If these are the questions you're thinking about right now, read on, and maybe the answers are all there.
The concept and origin of the right to goods
The concept of cargo rights comes from the United Kingdom, and the current legal system in China is based on the German civil law system. Therefore, in China's civil code and relevant judicial interpretations, there is only the concept of ownership and not the concept of the right to goods. In English law, there are three concepts of ownership, property and title. When translated into Chinese, the right to goods and property rights can be substituted for each other. For example, the Chinese translation of "intellectual property" is "intellectual property". With the development of international goods, the concept of cargo rights is widely used in international contracts, and domestic contracts also provide for the use of "Certificate of Transfer of Goods Rights" as a document for the delivery of goods. At this stage, the right to goods has become the customary use of the industry in the field of bulk commodities.
With the development of the economy, the concept of cargo rights has gradually moved from the first field to the social system.
In the English legal system, property rights include title and charge, i.e. property rights include ownership of property and encumbrances on property. Article 406 of China's Civil Code stipulates that "during the mortgage period, the mortgagor may transfer the mortgaged property. Where the parties agree otherwise, follow their agreement. If the mortgaged property is transferred, the mortgage right shall not be affected. According to this provision, the mortgage may not be affected when the ownership of the movable property subject to a mortgage is transferred, although there is a change in ownership. It can be seen that in addition to stipulating the transfer of ownership, the encumbrances on the movable property, such as whether to create a mortgage, should also be taken into account in the movable property transaction.
Therefore, the broad sense of the right to goods can be understood to include the title and encumbrances of the goods.
In some national-level ** documents in China, the concept of cargo rights is also gradually adopted, such as in the "Guiding Opinions of the China Banking and Insurance Regulatory Commission and the People's Bank of China on Promoting the Healthy Development of Movable Property and Rights Financing Business" (CBIRC 2022 Document No. 29).Optimize commodity and cargo rights financing"And".Explore and carry out various forms of movable property financing business, such as floating guarantee, maximum guarantee, and future cargo right guarantee”。The right to goods is also mentioned in the document issued by the State-owned Assets Supervision and Administration Commission of the People's Republic of China (SASAC) on standardizing the management of **enterprises and strictly prohibiting all kinds of falsehoods) (Guo Zi Fa Cai Ping Gui [2023] No. 74).
The concept of cargo rights also appears in the documents of some local authorities in China, such as in the notice of Zhejiang State-owned Assets Supervision and Administration Commission on further strengthening the risk management and control of provincial enterprises".Effectively strengthen the risk management and control of cargo rights”；In the "Guiding Opinions on Strengthening the Risk Control of Bulk Commodities of Municipal State-owned Enterprises" issued by the Xiamen State-owned Assets Supervision and Administration Commission, Xiamen municipal state-owned enterprises are requiredEstablish a management system for the right to control the right to goods; The State-owned Assets Supervision and Administration Commission of Shandong Province also mentioned the right of goods in the Interim Measures for the Control of High-risk Business of Provincial Enterprises in Shandong Province. The concept and basic issues of cargo rights management
1.What exactly is cargo rights management?
As mentioned above, the right to goods can be understood as the ownership and encumbrance of the goods, so the next definition of the right to goods management: control of title to goods is the right holder's control of the goods in a specific area, and on this basis, the management of the rights (ownership, encumbrances) established on the specific goods. Specifically, cargo rights management is based on cargo management, which involves the ownership, delivery, possession, payment, settlement, etc. of goods.
2.Is cargo ownership management the same as cargo management?
While the two are interconnected, they are not the same thing. Cargo management is the basis for the realization of cargo rights management, while cargo rights management manages the rights of goods, and the scope and focus of the management of the two are different. Specifically: the main concern of cargo management is whether the goods are there, less or less? The main concern of cargo rights management is whether the rights above the goods are clear, so as to ensure that the rights of the goods are legally protected and avoid conflicts and losses of the rights of the goods. The right holder is the subject of the right to the goods, and should carry out the management of the right to the goods as soon as possible, actively and comprehensively, which is the key for the right holder to realize the management of the right to the goods.
3.What is the fundamental problem of cargo rights management?
The management of cargo rights fundamentally solves the problem of the risk of cargo rights, prevents malicious third parties, and ensures that the rights of the right holder are not infringed.
4.What are the aspects of cargo rights management?
Before the transaction, conduct due diligence and store evidence of the due diligence process to understand the authenticity of the background, the authenticity of the goods, determine the information of the place of storage of the goods (warehouse), and the integrity of the right to the goods, and self-prove that the duty of care has been fulfilled. In the course of the transaction, the effective delivery and continuous possession shall be carried out, and the delivery and possession shall be stored. The right to the goods will be registered and publicized on the third-party platform, and the rights of goods will be declared online and offline. After the transaction is completed, the chain of evidence of the transfer of the right to the goods to the downstream should be preserved. Many enterprises and financial institutions are faced with a problem, on the one hand, such work experience is insufficient, on the other hand, the operation staff can not keep up, the cost is high, so it is important to find a professional team and tools. Three means of cargo rights management
Cargo control management:Through the establishment of the goods rights management system, the warehouse, goods, warehousing and inventory and other behaviors are managed. At present, new technologies such as the Internet of Things, electronic fences, and biometrics are mostly used in the market to realize the perception, identification, positioning, tracking and monitoring of goods; Or strengthen on-site management by means of electronic cargo right publicity boards, and basically achieve effective control of goods. However, controlling the goods does not mean that the right must be established, and the control of the goods is only the basis of the right to control the goods.
Registration Publicity:
Publicize the right to goods on a third-party platform, dissuade a bona fide third party, and realize the exclusivity of the right to goods. However, registration is not a counter-possession, but only a means of countering bona fide third parties. In the judgment document (2016) SPC Min Shen No. 1514, the SPC held that the parties had obtained the ownership of the goods involved in the case in accordance with the law because they had carried out effective third-party registration and publicity, so registration and publicity was one of the effective means for the management of cargo rights.
Evidence Management:
In the actual business, the ownership of goods is always changing, so the management of goods rights is dynamic, not static. This requires the use of technical means to record the management of the whole life cycle of the right to goods, and form evidence with judicial effect. At the same time, the evidence is "on-chain" on the national blockchain, relying on the national credibility and technical credibility to ensure the information security of the evidence storage data. In the judgment document (2021) Zui Gao Fa Min Shen No. 1855, the Supreme People's Court held that the contents of the "Certificate of Transfer of Cargo Rights", "Notice of Transfer of Goods", "Notice of Transfer of Goods and Delivery of Goods" and other contents cannot prove that the ownership of the goods involved in the case has been obtained. Therefore, the management of cargo rights should not only manage the documents and evidence, but also manage the evidence of the actual transfer of the rights of goods. Relevant enterprises, financial institutions, industrial clusters and local departments are actively carrying out the first-chain finance of cargo rights to ensure the safety of their own ownership, and the whole process needs to carry out professional cargo rights management.
Author: Hou Zeyu, Fu Jinxuan, Li Na.
Editor: Hou Zeyu.
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