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对“跟单托收”中委托人与代收行之间法律关系的界定素无定论。学理上存在无直接合同关系、间接代理关系、复代理关系几类学说。在法律层面,托收惯例并无明确界定,各国依其国内法界定这一关系。“无直接合同关系说”与“侵权关系说”在各国国内法下并无很大差异,而“间接代理说”与“复代理说”则差别较大。在司法实践中,对此关系界定存在无直接合同关系、代理关系、侵权关系三种界定模式,我国主要采用复代理说。“无直接合同关系说”一直是传统主导观点,晚近司法实践已凸显其无法合理保护委托人利益的缺点。“间接代理说”和“复代理说”其本质都是在当事人间并未订立合同的背景之下以法律的一般规定去推导二者关系,难免存在纰漏。“侵权关系说”存在适用范围的局限性,运用得当方能发挥其作用。鉴于此,只有重新审视各观点之利弊,更新国际惯例与国内法的相关规定,才能明确赋予委托人直接诉权,从而平衡委托人与代收行的利益,促进国际托收制度的发展。
The definition of the legal relationship between the principal and the collecting bank in the “hedging” is inconclusive. There are no theories of direct contractual relationship, indirect agency relationship and complex agency relationship in theory. At the legal level, the collection practices are not clearly defined and each State defines the relationship in accordance with its domestic law. “There is no direct contractual relationship between ” and “infringement relationship ” said “under the domestic law is not very different, and ” indirect agent said “and ” complex agent said “is quite different. In judicial practice, there are three defining modes of no direct contractual relationship, agency relationship and infringement relation to this relationship, and our country mainly adopts complex agency. ”No direct contractual relationship said “ has always been the traditional dominant point of view, recent judicial practice has highlighted its shortcomings in the interests of the client can not be reasonably protected. The indirect agent theory and the complex agent theory are essentially based on the general provisions of law in the absence of a contract between the parties to derive the relationship between the two, which inevitably results in flaws. ”Infringement relationship said " There are limitations of the scope of application, used properly to play its role. Therefore, only by reexamining the advantages and disadvantages of each point of view and updating the relevant provisions of international practice and domestic law can the direct entrusting right of clients be clearly given, so as to balance the interests of the principal and the collecting bank and promote the development of the international collection system.