A Study On The Expression Of Intention In Negotiable Instruments

Act of negotiable instruments is a legal act on negotiable instruments by an actor, with the expression of intention as its essential element. Due to its enforcement through negotiable instruments, a kind of securities, the expression of intention in negotiable instruments is different from the general expression of intention in civil law and we therefore cannot simply apply to the former field those general rules within the latter. Since our current Negotiable Instrument Law has no explicit prescription on the expression of intention in negotiable instruments, there is accordingly no applicable legal support if we encounter with problems such as defects of the expression of intention in negotiable instruments. Taking existing researches as a basis and penetrating from the peculiarities in which negotiable instrument acts differs from the general civil legal acts, this article intends to examine the problems which relate to the expression of intention in negotiable instruments systematically, and expect provide helpful suggestions for our legal institution. The study is divided into four chapters:Relying on the two-stage doctrine, Chapter One puts forward a new theory of expression of intention in negotiable instruments. Section One elucidates multifarious theories of negotiable instruments which may be classified as the unary composition theory and the binary composition theory. The former understands the delivery of negotiable instruments as delivery of the expression of intention in negotiable instruments, and therefore perhaps does detriment to the transferee in good faith; and the visual theory of rights has no explicit, uniform and applicable legal rules, so the unary composition theory which combine with the visual theory of rights also faces difficulties in legal application. Among theories within the binary composition theory, the two-stage doctrine presents itself as the most rational for its convincing explanation and correspondence to the nature of negotiable instruments as securities. Section Two justifies the two-stage doctrine: firstly deals with the significance of the classification that the act of negotiable instruments is divide into two kinds of acts include the act to undertake negotiable instrument debts (or acts of establishment) and act to transmit negotiable instrument rights (or acts of delivery), and then gives analysis and retort to various critiques of the two-stage doctrine. Section Three analyses, depending on that classification, the expressions of intention in negotiable instruments, and draws a conclusion that in occasions of endorsement and issuing bills of exchange, the establishment of negotiable instrument debts (or the obligation of repayment) is not a legal effect but an effect of the actor's expression of intention, and there is also expression of intention of undertaking debts; similarly with regard to acceptance and guarantee, there exists expression of intention of transmitting rights, which in nature is expression of intention pointing to the particular counterparty.Chapter Two stands on the basis of the two-stage doctrine and reconstructs the composition of expression of intention in negotiable instruments. The opening paragraphs deal with the nature of expression of intention in negotiable instruments, and then analyse the establishment and effectuation of the expression of intention on the two stages. The expression of intention to undertake negotiable instrument debts is without the counterparty, concerning with many parties, characteristic of unilaterality, formality, non-cause and independence, and hence ought to be applied to by peculiar criterion; the expression of intention to transmit negotiable instrument rights points to the particular counterparty, occurs between direct counterparties, and, without no fundamental difference from expression of intention of the civil law, may be allowed direct application of relevant rules of expression of intention of the civil law. As far as expression of intention to undertake negotiable instrument debts is concerned, if only an actor capable of action recognizes or should recognize the negotiable instrument and makes a signature, the expression of intention to undertake negotiable instrument debts is immediately put into force,and the negotiable instrument debts and corresponding rights follow. On the occasion of expression of intention to transmit negotiable instrument rights, the delivery of negotiable instruments by an actor is established when arriving the counterparty, with its validity influenced by the actor's capacity of action and disposition, the defect in expression of intention, the content of expression of intention, the counterparty's capacity of receptance, etc. The valid establishment of expression of intention to transmit negotiable instrument rights incurs transition of rights; and in this case the holder, that is, the obligee, of negotiable instruments can acquire any relevant debtor to pay the recorded amount.Chapter Three then builds up a theory of defects of expression of intention in negotiable instruments. If acts of negotiable instruments have defects in expression of intention, those existing doctrines show divergences as to whether we can apply the general prescription upon expression of intention in civil law, and several doctrines have been supposed, such as the doctrine of absolute application, the doctrine of particular amendment and application, the doctrine of general amendment and application, and the doctrine of no application, all of which have formidable predicaments. In the vision of the two-stage doctrine, as for expression of intention to undertake negotiable instrument debts, we ought to"absolutely deny"the application of civil law rules; as for expression of intention to transmit negotiable instrument rights,"absolutely approve". Not only are the defects of applying single theory of expression of intention in negotiable instruments surmounted; but also is the inquiry on expression of intention in negotiable instruments promoted further. Section Two and Three explain concretely the problem of defects in expression of intention to undertake negotiable instrument debts and to transmit negotiable instrument rights. If only an actor recognizes or should recognize negotiable instruments and makes a signature, the expression of intention is immediately put into force and incurs debts of negotiable instruments, with its validity immune to defects of expression of intention. However, lack of expression of intention to undertake negotiable instrument debts, there are no negotiable instrument debts. By contrast, the validity of expression of intention to transmit negotiable instrument rights can no doubt be tested by relevant rules of civil law, that's to say, expression of intention with defects will be null and avoid. Along with lack of intention to undertake debts, once short of intention to transmit rights, that is, delivery, the expression of intention itself has no ground.Chapter Four for the most part examines the problem of interpretation of expression of intention in negotiable instruments. First of all, the traditional idea is analysed and reflected. The unary composition theory sets the non-cause of acts in negotiable instruments as the premise, which limits the object of interpretation to negotiable instruments and records on them. But the non-cause of acts in negotiable instruments is relative, for at least the cause-relation between immediate parties can be taken in account. The unary composition theory also takes the presupposition of the literalness of acts in negotiable instruments, and adopts the principle of strictly objective interpretation. But, the literalness is relative too, that is to say, the substantial social facts behind the formal records and the facts outside the negotiable instruments cannot be completely ignored. Those cases can't be rationally answered by the unary composition theory. Secondly, the object, criterion,principle and method of interpretation are separately elucidated as far as the expression of intention both to undertake debts and to transmit rights are concerned. As for interpretation of expression of intention to undertake debts, we adopt the literalness of records as the object, the external, objective and valid interpretation the principle of interpretation, the factual general social ideas the criterion, and any interpretation except according to purpose the method. As for interpretation of expression of intention to transmit rights, we adopt the literalness of records as well as circumstances between parties as the object of interpretation, mainly the inquiry into intention of parties the principle of interpretation,"the meaning that the counterparty realizes or can realize"the criterion, and various modes of interpretation in civil law the method. Finally, three points need to be noticed in the case that the obligee obtains the recorded amount: the negotiable instrument and therefore the debt should be valid; the claim should be made toward the definite debtor; there should be definite content of negotiable instrument debt, which are all determined by interpreting the expression of intention. Hence Section Three explains by typical and complex cases the concrete rules of interpretation of expression of intention in negotiable instruments, taking theories into the analysis of the concrete and thereby justifying the theory of interpreting the expression of intention in negotiable instruments this article contends.