A Study On Claim-right Of Restitution Interest Of Negotiable Instruments Law

Claim-right of restitution interest of negotiable instruments is established to maintain the fairness and justice of society, to redress the balance of interests of the parties concerned, to remedy the loss of litigant. So claim-right of restitution interest of negotiable instruments is one of the most difficult problem in negotiable instruments law. The right of negotiable instruments law is different with general obligatory right. The negative prescription of right is very short. Meanwhile the procedure to preserve right is relatively strict. So there are many holders of negotiable instruments who lost their right according to the prescriptions of law. When the obligor of negotiable instruments relieves the debt of negotiable instruments, it is unfair for him to enjoy the holding because of the casual relationship. Namely, because the heedlessness of holder cause the right of negotiable instruments to become invalid, the parties who bear the obligation arising out of negotiable instruments is relieved of the related obligation. So claim-right of restitution interest is rights arising out of the bill. When the claim-right expires because of the completed prescription or deficient procedure, the right which is prescribed by the negotiable instruments law to balance the relationship of the related parties is the right of holder to ask the drawer, acceptor and endorser to pay back the interest of holder.The related basic theory of negotiable instruments is discussed in chapter 1. The cause-free theory of negotiable instruments, its legal implication and its relativity are elaborated in the first section. This theory causes the separation between bills transaction and casual relation, improves the circulation of bills and guarantees the right of obligee of negotiable instruments. In the second section, the legal relationship is studied, which is reason and pan out among the immediate parties who confer and accept the bills. The legal relationship is the general name of all right relationship which acts as the foundation of instrument relationship. The effect of the cause relation on instrument relationship is mainly embodied in the demur of cause relation and the institution of claim-right of restitution interest. In the third section, the two-phase theory of bill act is discussed. The act of negotiable instruments can be divided into debt burden act and right transfer act in the two-phase theory of bill act. It expresses the great explanation, conform the negotiable securities characteristic of bill and is a comparatively rational bill theory.Based on the bill theory of first chapter, the nature of claim-right of restitution interest of negotiable instruments is investigated through the systematical arrangement and analysis of different theory in chapter 2. The legal nature of this institution is regarded as the claim for returning unjustified enrichment in the past. But now the right is considered as a kind of special claim-right stemming from the fair idea and it is the right of negotiable instruments law not the right of bill. The claim-right of restitution interest of negotiable instruments just comes into being after the elimination of bill right. The general speaking overlooks the characteristic of right, it is just a kind of vague criticism. Based on an overall analysis of different theories, the variation theory is more rational in which the claim-right of restitution interest is regarded as a variation of bill right. In the adjudication of Supreme Court of Japan, this kind of right is not the right of bill, is just the variation of the changed bill right with the existed legal relationship, and is not the existed legal relationship of the bill right with the changed essence. Some viewpoints consider that the identity between claim-right of restitution interest and rights arising out of the bill, which can not be conclued directly from the character of law, should be recognized in order to manage the relationship between obligor and obligee who lose the rights arising out of the bill.Claim-right of restitution interest is investigated from the view point of fairness in chapter 3. The related problems of the occurrence of claim-right of restitution interest are studied through the exploration of interest. At first, the character of the institution is inspected to explore the secondary right according to the analysis of"benefit gaining"and"fairness"and the factors which cause the occurrence of claim-right of restitution interest are discussed again. When the right arising out of the bill become invalid because of the deficiency of preservation procedure or time expiration, whether the elimination of claim-right of restitution interest depent on whose relationship is available or there are other available claim-right to remdy the interest, the cause to make the right arising out of bill invalid is enough because of the relationship of the counterpart who is asked to restitute interest. Even if there are right of negotiable instrument for other obligor or other remedy method, the occurrence of claim-right of restitution interest is reasonable. Claim-right of restitution interest has no reference to the bill right performing of other obligee. The holder damage should not as the important condition prescribed by clause 85 of Negotiable Instruments Law. Secondly, the party of claim-right of restitution interest is inspected and the content of benefit is exemplified. The obligee of claim-right of restitution intererst is the bill holder when the rights arising out of bill become invalid because of the deficiency of preservation procedure or time expiration. According to the analysis above, the obligee includes not only the last bill holder but the claimants who need to perform the tracing-back obligation and the holder who can prove his essential right. The obligor of claim-right of restitution interest of cashier's check usually is the drawer, but under some conditions the endorser is the obligor. If the negotiable instrument is bill of exchange, the obligor also includes the acceptor. If the negotiable instrument is cheque, the obligor includes the drawer, endorser and the payor who promise to pay. From the point of view of fairness, the elimination of claim-right of restitution interest is analyzed in the second part of this chapter. There is no special stipulation about the time limitation of claim-right of restitution interest. Previously, its time limitation is 10 year accroding to the standard regulation of general obligation because the claim-right of restitution interest do not come into being with the bills practice or other commercial behavior. Recently, the general theory considers that the time limitation should be 5 year if the claim-right of restitution interest is related to the obligatory right caused by the right arising out of bill.In chapter 4, the execution and transfer of claim-right of restitution right is investigated through the detailed analysis of nature of right and interest. Because the claim-right of restitution interest is not the right arising out of right, its transfer does not comply with endorsement. So, its transfer can only comply with the transfer method of credit with specific obligee and the transfer of its effectiveness also comply with that of credit with specific obligee. However, the counterplea of the bill-debtor to the holder is available only under the condition that the right arising out of bill can be implemented because the claim-right of restitution interest is the substitute of right arising out of bill. Just as mentioned above, because the transfer of claim-right of restitution right is limited to the effect of the transfer of credit with specific obligee, the transfer of the right of couterplea is inevitable. In consideration of the principles of the confirmation of claim-right of restitution interest, the establishment of the principles is not dependent on the possession of the negotiable instrument. As long as there is no third party who get the right with good will, the bill-loser is still the obligee of the right. Thus, claim-right of restitution interest acts as the credit with specfic obligee. The right certification can prove the right of the invalid bill. The execution of this kind of right does not rely on the possession of bill. Even if the bill is lost the execution do not need the invalidating judgment. But from the point of view that claim-right of restitution interest is the variation of rights arising out of bill, it is necessary to possess the bill or to judge the bill invalid to implement the execution and transfer of claim-right of restitution interest. When the claim-right of restitution interest is considered as the variation of the rights arising out of bill, the negotiable instruments whose claim right has taken place can be viewed as the forbidden endorsement negotiable instruments. From the point of view of debtor of commercial instrument who is asked to restitute interest, it is necessary to take bill back to avoid the second payment of the negotiable instruments and to protect the possible goodwill obtainer during the term of vadility of the negotiable instruments. Under the same principles, during the existence of the valid right arising out of bill, it is necessary to protect the circulation of bill and after the bill become invalid it is not to give up the usage of Negotiable Instruments Law completely. Considering to protect the goodwill obtainer of the bill with invalid right, it is necessary to confirm the execution of right of the obligee of claim-right of negotiable instruments. In the event a negotiable instrument is lost, ex-right determination is generally considered as the substitute of bill presentment. So, as long as the negotiable instrument with continuous endorsement can prove the qualification of the obligee of the right arising out of bill, it is logical to consider that the obligee has the qualification form of claim-right of restitution interest. But in order to ensure the execution of the claim-right of restitution interest, it is feasible to for the obligor of the bill to get interest because of the deficiency of execution procedure or time expiration and it is necessary for the obligor to confirm the amount of the interest according to the former cases. If the possession and ex-right of the negotiable instrument is the necessary requisite, the exectution or transfer of the claim-right of restitution interest can protect not only the legitimate interest of bill-loser, goodwill obtainer and assignee but the interest of obligor who bill-loser, goodwill obtainer and assignee exchange the payment interest with, and the problems among the related obligor and obligee can be solved completely.According to the comparison between Japan and China, the revelation of claim-right of restitution interest in Japan can be got in Chapter 5. The specification of claim-right of restitution interest in the eighteenth clause of China Negotiable Instruments Law is too simple. And the claim-right of restitution interest is not fully studied in the academic circle. In the first part of this chapter, the necessity of the claim-right is explored. The deficiency of the eighteenth clause of China Negotiable Instruments Law is studied in the second part from the aspect of legislation, the law itself and the conflict with other law. Some advices of legislation are put forward in the third part of this chapter. In other words, if the causal essentials are just bill right exceeding time limit and deficient procedure, it is unnecessary to possess the bill to execute the right, endorsor is the subject of duty, the dwelling place or business place can be regarded as the place of performance of obligations, and the starting point of interest is prescribed clearly. The range of restitution interest should be within the interest that he can get. The limitation of action should be short term, 1 year or 2 year.