Judical Relief Of Negotiable Instrument Rights

In the process of realizing negotiable instrument rights, it is inevitable for theplaintiff to encounter obstacle and dispute, regardless of the kind of negotiableinstrument rights, that is, rights on negotiable instrument or rights provided innegotiable instrument law. Negotiable instrument litigation, providing predictableprocedure rules, is public relief for the plaintiff with enforceability and ultimacy. It ismost direct and effective. Negotiable instrument law is constrcted on the basis ofnegotiable instrument rights. Relief for the plaintiff is the same importment as therights itself. So it is necessary for us to discuss the theory and practice of negotiableinstrument litigation.This thesis ioncludes seven chapters. ChapterⅠis introduction. The contents ofthe remaining chapters are as follows:Chapter Ⅱ defines negotiable instrument rights and negotiable instrumentlitigation.The latter is judicial relief for the former.On condition that negotiableinstrument rights has been infringed or it’s exercise is prevented, judicial organs willexercise public power to implement relief, in order to maintain the legal rights andinterests of the plaintiff. Negotiable instrument lawsuit is on the premise of negotiableinstrument rights, so in the first chapter the author discussed negotiable instrumentrights firstly,and then divided negotiable instrument rights into two types, incudingrights on negotiable instrument and rights provided in negotiable instrument law. Inaccrodance with the division, negotiable instrument dispute can also be divided intotwo types which decide the type system of negotiable instrument litigation, namely,litigation of rights on negotiable instrument, litigation of recovery for rights onnegotiable instrument and litigation of rights provided in negotiable instrument law. Chapter Ⅲ discusses the principle of negotiableinstrument law used innegotiable instrument litigation.Besides statute rules, procedure rules are part ofnegotiable instruments law as the same.Some scholars regard this as law in essencialsense. Negotiable instruments law in China has the social purpose of maintainingsocialist economic order and promoting the development of socialist market economyas the same as the special purpose that can only be realized by rules prescribed innegotiable instruments law.Generally speaking,the main special purpose is to makethe large number of money credit exsiting in social economy life circulat smoothlyand liquidate actualy. It is this purpose that decides the basic principles observed innegotiable instruments law which involves procedure rules. Theoretical principles arecomposed of central ones(abstract of negotiable instruments), equitableones(defendence of negotiable instruments), remedial ones(remedy for loss ofnegotiable instruments) and bona fide ones(restitution of negotiableinstruments).Thinking principles are composed of priority of conterparty, theliteralness of negotiable instruments and priority of formal justice in relief.Valueprinciple is the one that prefers efficiency to security. By means of applying whatexplained above extensively and reasonably in the process of litigation, negotiableinstruments would be circulated smoothly and trade security would be promtedrapidly. At the same time, the judicial relief of negotiable instrument rights wouldbecome more meticulous and comprehensiv.Chapter Ⅳ discusses and analyzesnegotiable instrument litigation for rights onnegotiable instrument. This chapter proceeds an empirical analysis in negotiableinstrument litigation due to relief on negotiable instrument rights, and then elaboratespayment claim litigation, recourse litigation and public notice procedure and ordinaryprocedure in negotiable-instrument rights recovery litigation sepreately. Litigation ofrights on negotiable instrument and litigation of recovery for rights on negotiableinstrument are diferent in the way of enforcing their rights, so as to the way of seekingthe judicial relief. But both are with the purpose of exercising rights on negotiableinstrument and are closely related to negotiable instrument dispute. Merely thatlitigation of rights on negotiable instrument is on the basis of negotiable instrument itself,while litigation of recovery for rights on negotiable instrument is on the basis ofrecovery.Chapter Ⅴ discusses and analyzes negotiable instrument litigation for rightsprovided in negotiable instrument law. This chapter firstly divides this kind oflitigation into five types,that is, restitution for negotiable instrument interest,damagesfor negotiable instrument interest, claims to return negotiable instrument and claimsfor issuing negotiable instrument receipt. Secondly this chapter analyzes cases ofevery kind. Although rights provided in negotiable instrument law incured due tonegotiable instrument, but it is not on negotiable instrument. By initiatingnon-negotiable instrument action in negotiable instrument law, the plaintiff cansuccessfully fullfil the negotiable instrument rights. The loss of the defendant causedby third parties can be made up fairly. The holder of negotiable instrument can getreasonable and effective relief finally when there is no protection in accordance withthe negotiable instrument legal procedure.Chapter Ⅵ expounds especially negotiable instrument jurisdiction concerningforeign affairs. Negotiable instrument as a kind of money payment tool,doesn’tcirculate only in the limitation of one country. Transnational circulation happens alsofequently. The variaty of negotiable instrument rules of diferent countries results incommon conflict when it is related to foreign negotiable instrument affairs. On thebasis of defining negotiable instruments involving foreign elements and foreignnegotiable instrument litigation,this chapter analyzes the causes of negotiableinstrument dispute involving foreign elements and the rules that can settle the dispute.This chapter determines the principle to decide negotiable instrument jurisdictionconcerning foreign affairs by analyzing cases of foreign negotiable instrumentlitigation.Coordination and choices of the same rules are significant to the safty oftransnational circulation and promotion of international trade.Chapter Ⅶ focouses on correction and improvement of existing negotiableinstrument institution. After discussing the common theory of negotiable instrumentinstitution and the type of relief of negotiable instrument, this chapter reveals theflaws and shortcomings of substantive rules and procedural rules of negotiableVI instrument litigation. Abstract of negotiable instruments is the foundation ofsubstantive rules of negotiable instrument litigation. Defendence of negotiableinstruments is procedural rules giving mandatory protection.Necessary modificationand supplement of public notice procedure and ordinary procedure provide moresatisfactory judicial relief and protection.Throughout the results of related research, there still exists a lot to study on thetopic of negotiable instrument institution from the point of judical relief of negotiableinstrument rights.All rules of negotiable instrument law demonstrates negotiableinstrument rights.This thesis tries to perfect and supplement judical relief ofnegotiable instrument rights. It must generate positivity for reference in negotiableinstrument lawsuit trial in our country, and this is also the innovation of this thesis.