On Defense Right Of Negotiable Instrument

Whether all kinds of the function of negotiable instruments can give full play in this realistic economic society depends on whether people like to use instruments. The wider we use them, the more functions will be realized. On the contrary, no matter how perfectly we design it, it would be not so valuable in this society and also the bill law will haven't any existing significance. So on one side, the establishment of bill law should advantage people accept it, that is, to exercise bill right. On the other side, it should advantage people to choose using instruments, that is, to assume commercial instrument. The protection for instrument debtor is mainly realized through the defense right exercising by debtor towards holder. If all rules and systems in the whole bill law is used to protect the well-meaning holders'right to promote the negotiation because of it being confronted the hoder, then in this sense, the Negotiable Instruments Law is an act telling people how to exercise defense right upon negotiable instruments correctly and properly. This article takes the conception of defense right upon the negotiable instruments as the logic starting point of argumentation, and delves into this right itself.The most innovative point in this thesis embodied from the following aspects: firstly, the research on generation basis of defense right on negotiable instrument and particularities occurred during exercise, traced origins on defense right on negotiable instrument by a thinking way of combining civil law theory and negotiable instrument. All of these enriched research on defense right on negotiable instrument. Secondly , it put out others lending negotiable instrument system, uses a complete new angle to view present theory negotiation in negotiable instrument development. It break through the past research vision, it is in a nature of perceptiveness and comprehensiveness, which has a great significant on negotiable instrument. This system have filled the legislation space on negotiable instrument guarantor lending negotiable instrument defense right problem. This system also provided a reasonable theory foundation support for legislation, perfected negotiable instrument law, instructed practice greatly. Thirdly, on the cognition of defense right on negotiable instrument, the author created a new way of thinking, to build defense right on negotiable instrument system creatively from oblige and obligor point of view.The article consists of five chapters, the contents summary as follows:Chapter OneGeneral survey of defense right upon the negotiable instruments.Firstly, we define the definition of defense right upon the negotiable instruments, and then to have it as the argumentation basis of the whole article. Defense right on negotiable instrument is that law of negotiable instrument requires negotiable instrument debtor could put out legal particulars of a matter or agreed matter to refuse to carry out negotiable instrument obligations to special negotiable instrument holder or general negotiable instrument holder.Secondly, we parse defense right upon the negotiable instruments from value point of view. we reveal the existing ideality and rationality of defense right upon the negotiable instruments. Defense right upon the negotiable instruments is reveled from the valued-based perspective in its oughtness and rationality: (1)the embodiment of principle of fairness, Fair principle is mainly embodied from the equal and honest principle of transaction main body. On one side this law emphasizes the guarantee of negotiable instrument holder's right, on the other side through endows defense right on negotiable instrument to debtor to protect their right and keep them own same status, so that keep profit balance among the parties. Honest principle embodied from negotiable instrument holder should get negotiable instrument with well-meaning, and pay for two parties reasonable price. (2)the carrier of justice to security correction, According to the fairness principle requirement, endowing debtor defense right, to limit negotiable instrument obligor's right and obligee's obligation into a proper scope.(3)the safe and balanced means of negotiation and transaction, By limit defense right on negotiable instrument, it promotes the circulation of negotiable instrument. By endow debtor defense right, it reminds holder to carry out the basic obligation, which ensures the transaction safe.(4)the realization of economic benefits of the negotiable instruments. legal salvage cost need long time and inefficient, defense right on negotiable instrument is more efficient, it realizes economic value, that is effectiveness.Chapter Two Generation of defense right upon the negotiable instruments.We mainly discuss the generation basis of defense right upon the negotiable instruments from theory angle.Firstly,They are defense right generated on basis of civil law theory, Negotiable instrument right is one kind of money debt which embodies on negotiable instrument. It applies to the basic theory of defense right on debt in civil law theory. Firstly, defense right is based on the rule of declaration of will. Secondly, defense right is based on civil agency. Thirdly, defense right is generated on basis of contracts law. Forth, defense right is generated on basis of elimination of debt theory.Secondly, They are defense right generated on basis of features of negotiable instruments, Firstly, defense right is generated on basis of negotiable instrument has the nature of requisite in form. Secondly, defense right is originated from the special system of negotiable instrument, such as, defense right is originated from lapse of right because of invalidating judgment. Defense right is eliminated for negotiable instrument lacks of preserving evidence procedure.Thirdly, They are defense right generated on basis of dand malice of party. Because this kind of defense right's major components and theoretical basis is really different from the prior two, the author will analyze it separately. Chapter ThreeSystem of defense right upon the negotiable instruments.Firstly,Through systematic research on plenty of contents and wide variety of defense right upon the negotiable instruments, review upon this system, Firstly, through review towards traditional negotiable instrument system, we know that the dichotomy classification theory, we have defense right on negotiable instrument towards objects, and defense right on negotiable instrument towards persons. Its rationality is fully embodied from its destructiveness. It is not perfect enough neither in form nor in content. Secondly, through review towards new defense right on negotiable instrument, we will analyze the superiority and restriction of new defense theory.Secondly, using a brand new perspective to view and think in the way of negotiable instruments obligee, we divide defense right upon the negotiable instruments into two types. They are defense right generated according to the written accounts on the negotiable instruments and defense right generated not on basis of written accounts on the negotiable instruments. From the obligor's way of thinking, we can divide defense right into self-possessed defense right upon the negotiable instruments and defense right generated from using others negotiable instruments.Chapter FourExercise of defense right upon the negotiable instruments.Firstly,Having an entire grasp of particularity during exercise of defense right upon the negotiable instruments from the following three aspects, they are general rules, That is legality and restriction principle.Secondly, discuss the effectiveness of exercise of negotiable instrument. Firstly, the effectiveness of the right to demand payment. Secondly, the effectiveness of right of recourse of negotiable instrument. Thirdly , the effectiveness of right to profit payment. Fourthly, the effectiveness of civil right.Finally, mainly discussed and analyzed the restriction in exercise of negotiable instrument. Restriction of exercise of negotiable instrument is one of the most characteristic and technical nature in bill law. The author analyzed its generation basis and requisition respectively. Firstly, research on theoretical basis of defense right on negotiable instrument restriction. The author analyzes and compares its hermeneutics of civil law and ownership acquirement doctrine, its policy doctrine and negotiable instrument debt characters doctrine, theory doctrine, humanity doctrine, the author adopt its humanity doctrine. It removed all defects of other doctrines, the superiority of this doctrine can be seen through payment deficiency and turning around endorsement. Secondly, the prerequisite of defense right on negotiable instrument. The prerequisite of defense right restriction towards person is that holder is worthy of being protected. If there is not this prerequisite, debtor's burden is not legal. There are three basic requirements on prerequisite of defense right on negotiable instrument. They are transferring possession of negotiable instrument obey to the negotiable instrument law, in accordance with the purpose of negotiable instrument circulation, assigning negotiable instrument with goodwill.Chapter FiveDefense right upon the negotiable instruments but on basis of the others using instruments.It proposed a system of defense right upon the negotiable instruments on basis of the others using instruments creatively. Firstly,It discussed and analyzed the significance of defense right. Firstly, balancing two parties's profit distribution. Our present negotiable instrument research theory focuses on protecting holder's right and interest, neglects debtor's. others assigning negotiable instrument broaden debtor's defense right, avoiding the research theory sink into imbalance status. Secondly, it applies to new development of defense right on negotiable instrument, and provides a basis for system establishment. It is perspective and compatible for new defense rights on negotiable instrument. Thirdly, it plays a very important role in perfecting negotiable instrument law theory. There is legislation blank in negotiable instrument law about whether guarantor could use guarantee's defense right. Others use negotiable instrument system makes up this defect in law. It is more effective to protect guarantor's interest.Secondly, It discussed and analyzed the theoretical basis of defense right. to analyze theoretical basis from balance principle, defense right continuity principle, review and modification substantive justice plays towards formal justice, integrity principle and abuse of rights principle these four aspects.Finally, It discussed and analyzed types of defense right upon the negotiable instruments on basis of the others using instruments concretely. This thesis gives a specific instruction to the new idea of others use defense right on negotiable instrument, analyzes rationality, guarantor's using and remote holder using concretely.which explored a probable path to perfect the defense right upon the negotiable instruments system and solve negotiable instruments debtor's defense right.