| The negotiable instruments are one of the most important inventions when the commodity economy has developed to a certain stage.They make the production part of capitalism commodities closely associated with the sales part thereof and form a capital circulation.Exactly according to what Karl Marx said,he called that the jump of commodity into money is the fatal leap.The needs of commodities by those potential buyers and the payment capability in the reality always have conflicts.The stagnation of commodity sales would then make the capital circulation no longer unimpeded,and it has impacts on the normal development of commodity productions.Because of this,in order to maintain and/or keep the capital circulation,there is the only way to temporarily separate the transfer of commodities from the payment of the commodities.Thus,the sales on credits and the method of prepayment emerged accordingly based on commercial credits.However,the commercial credits based on the sales on credits could not guarantee payments on due could be timely collected,they also could not be proofs for funds circulation through transfer of debts before maturity.This put creditors in disadvantaged positions.Along with the economic development,the negotiable instruments gradually evolved to have many functions fitting into the social and economic environments.In the early economic era,exchange,payment,settlement,circulation and credit were main functions of the negotiable instruments,and they constitutes the basic structure and main rules of the negotiable instruments laws.The payment methods based on the negotiable instruments decreased the needs for currencies,when they secured the interests of the creditors,they also promoted the funds efficiency between buyers and sellers.Because of this,they gradually replaced the methods of sales on credits and prepayments.Along with the further expansion of the usable scopes of the negotiable instruments,expanded reproduction no longer needed the accumulation of large amounts of currencies.The impediment between manufacturing and sales of commodities was cleaved,capitals were turned over and circulated in acceleration.The commodity economy rapidly developed.When the social and economic environment developed to a brand new stage,the transaction mediums,transaction parties and the sources of commercial credits all underwent large changes.People's expectation to financial tools was no longer limited to the functions of payment,exchange,settlement and circulations.They put their focus on more convenient and efficient methods.Under the new social and economic environment,the negotiable instruments are no longer the only way of accessing the capital circulation,they are far behind of newly evolved electronic payment in terms of payment convenience and timeliness.Because of this,the first issue which this Dissertation researches,is to explore the values of negotiable instruments under the new social environment,i.e.,whether or not the negotiable instruments have completed their missions and should be withdrawn from the history.If the negotiable instruments still have some values,under the new social environment,how are these values presented? The negotiable instruments are physical statements of the commercial credits,and they make the negotiable instruments have the inherent functions of credits and financing.However,under the current social and economic environments of China,the financing function of the negotiable instruments is in conflicted position: on one hand,negotiable instrument financing is an ideal financing method for mid-and small-sized enterprises.Because the negotiable instrument financing is a financing method combining commercial credits and bank credits,based on the discount rate for negotiable instrument which marketization is relatively mature,those midand small-sized enterprises with better credits have some sort of negotiation power,and they are able to complete financing in a relatively cheaper and convenient way.Because of this,encouraging the negotiable instrument financing would lead the enterprises to save financing costs,can create a relatively easier capital environment for the market,can provide capital support for the mid-and small-sized enterprises;on the other hand,the negotiable instrument financing still has many obstructions.Because the domestic negotiable instrument laws have not included the financing function to be one of the functions of negotiable instruments,the negotiable instrument financing still faces legal difficulties,e.g.,lack of true trading background among the parties of negotiable instrument financing,during the process of negotiable instrument financing,the simple delivery effect of negotiable instruments is uncertain,and the appropriateness of parties who actually apply for discount of the negotiable instrument financing,etc.Moreover,cases caused by the risks of negotiable instrument financing impose large threats to the financial stability,the funds idling caused by cashing out negotiable instrument is in conflict with the goal to support the development of physical economy.In the recent years,China and foreign countries all have tried to improve the negotiable instrument financing from the institution and product aspects,the results are either not satisfactory or do not fit into the current social and economic environments of China.Because of this,another issue of this Dissertation,is to research how to make the negotiable instruments realize the financing function under the current legal frame,and to research whether or not the economic negotiable instrument financing based on the standardized debt rights of negotiable instrument can realize the negotiable instrument financing in a legal,ordered and controllable way.Through the research of the aforementioned issues,this Dissertation aims at providing feasible and realistic reference for the institutionalization of negotiable instrument innovation under the new social and economic environments.The legal issues in connection with the negotiable instruments are never an unexpected topic.From the enactment of the Negotiable Instrument Law of the PRC in 1995,the related legal issues around the negotiable instruments have undergone extensive discussion during a relatively long period of time.Some research results,directive cases and amendment opinions for legislations related to the non-caustic nature of the negotiable instruments,pledge of the negotiable instruments,rights and remedies of the negotiable instruments are diversifying.Along with the promotion of science and technology and the change of payment habits,a part of legal issues related to the negotiable instruments are resolved naturally,such as the importance in connection with forged negotiable instruments,altered negotiable instruments,obliterated negotiable instruments dropped dramatically.The disputes and controversies caused by the mistakes of mandatory entries on the negotiable instruments also have gradually become subsided during the trend of electronic negotiable instruments.The more important is the development and change of the social and economic environments have made the roles of the negotiable instruments have changed.The market needs for negotiable instruments have been from payment and exchange to financing and innovation.Certainly,the negotiable instrument financing is not a new idea,how to develop the negotiable instrument financing under the background where the Negotiable Instrument Law limits true trading in a legal,ordered and controllable way is mainly suggested to modify the Negotiable Instrument Law and to stick with the absolute non-caustic nature of the negotiable instruments.However,under the current Chinese social and economic environments,the negotiable instrument financing modes have some risks,multiple negotiable instrument financing modes are still the tools of commercial banks to “circumvent scale,circumvent supervision”,the funds idling caused by cashing out negotiable instruments under the relatively easier background of currency policies is quite troublesome.During a short period of time,no longer requiring the negotiable instruments with true trading background or the suggestion of opening financial negotiable instrument should have large difficulties.In this regard,focus on how to find an avenue for developing the financing function of negotiable instrument under the current domestic negotiable instrument legal frame has more feasibility and reality.Because of this,the innovation of this Dissertation are: first,through analysis of the legal difficulties of the domestic negotiable instrument financing and comparison of foreign and domestic practices of negotiable instrument financing,this Dissertation thinks that under the current domestic negotiable instrument legal frame,great amendment and modification of the negotiable instrument law in order to fit the development of the negotiable instrument financing lack reality and feasibility.This Dissertation proposes that a feasible avenue for negotiable instrument financing should based on the electronic negotiable instrument standardized debt rights.The standardized debt capitals require the equal division of the underlying capitals.Because equal division of paper negotiable instruments apparently runs afoul of the basic requirement for the combination of right and paper of negotiable instrument,this Dissertation proposes that the electronic negotiable instrument may be of the equal division in the electronic negotiable instrument system,and it fully elaborates how to exercise the negotiable instrument rights after the equal division of the electronic negotiable instruments.Second,this Dissertation,in combination of the supervisory requirements for the domestic standardized debt capitals and the features of electronic negotiable instruments,proposes how to properly adjust and modify the laws and regulations of the negotiable instruments in an effort to fit the development of the negotiable instrument financing based on the electronic negotiable instruments standardized debt rights,and proposes institution innovation which should establish a central counterparty settlement institution of negotiable instruments and business innovation which is based on negotiable instrument standardized debt rights.The main body of this Dissertation is divided into five chapters.Each chapter is arranged in progressive logic.First of all,review the process of evolved functions of the negotiable instruments,proposes preconditions under which the functions of negotiable instrument fit the social and economic environment;secondly,under the new social and economic environment,re-explore the values of negotiable instruments,propose that under the new social and economic environments the negotiable instrument should focus on the electronic negotiable instrument financing;thirdly,proposes that the negotiable instrument financing is only limited in the payment tool position bestowed by the negotiable instrument legislations,the negotiable instrument financing has multi-layered legal difficulties;fourth,comparing with the practices of different types of negotiable instrument financing between China and foreign countries,proposes that the aforementioned cases under the domestic social and economic environments do not have feasibility;finally,proposes feasible avenues are electronic negotiable instrument standardization for the negotiable instrument financing under the current domestic negotiable instrument legal frame.The summaries of each Chapter are as follows:CHPATER ? is “Legal Theories and Progresses of Evolution of the Negotiable Instrument Functions”.Each function of the negotiable instruments was not achieved in one day.Along with the economic development,the negotiable instrument gradually evolved to have exchange,payment,settlement,circulation and credit functions which fitted the social and economic environments back then.Also,in China the negotiable instruments experienced a development process from being a medium of commercial practice to a basis of commercial credit under the commercial depression.Because of this,this Chapter starts from the legal theories of the evolution of the negotiable instrument functions,in combination of the social and economic environments,to trace the development history of the negotiable instrument functions,argue about the close association between the evolution of the negotiable instrument functions and the change of the social and economic environments,lays a foundation for the necessity of changing the value of the negotiable instrument under the new social and economic environment in the subsequent chapters.CHAPTER ? is “Re-exploration of Negotiable Instrument Values under the New Social and Economic Environment”.The social and economic environments is a combination of the currency market,debenture market,stock market,foreign exchange market,off-shore market associated with commodity market.Under the new social and economic environments of electronic transactional medium,de-banking transactional parties,de-centralized sources of credits,the importance of negotiable instruments as payment tools decreases.During the same time,the issuance volume and cashing out volume of the electronic negotiable instruments dramatically increase,on one hand,the flexible,safe and efficient features of the electronic negotiable instruments make the negotiable instrument revive;on the other hand,the particularly low cost and high efficiency advantage of the negotiable instrument financing make it popular among the mid-and small-sized enterprises.Because of this,this Chapter proposes that from the perspective of the new social and economic environment,the value of negotiable instrument should be the electronic negotiable instrument financing.Combining the function and positioning of the negotiable instrument financing,this Chapter thinks how to properly deal with the game relations between support of physical economy and prevision of funds idling,should go back to the research of the negotiable instrument financing institution.CHAPTER ? is “Legal Difficulties of the Negotiable Instrument Financing”.Because the legislative background and the current social and economic environment of the negotiable instrument legislations exist differences,the domestic negotiable instrument legislations deem the negotiable instrument as payment tools.From different aspects,the negotiable instrument legislations limit the performance of the negotiable instrument financing functions.Many issues in connection with the negotiable instrument legislations have conflicts,for examples,parties seeking negotiable instrument financing do not have true trading background,during the process of the negotiable instrument financing,the simple delivery effect of the negotiable instrument is uncertain,doubt about the appropriateness of parties who actually apply for discount of the negotiable instrument financing,etc.Although modification and adjustment of the negotiable instrument legislations would be a easy way for clearing impediments against the negotiable instrument financing,under the current domestic situation,easily allowing the negotiable instrument financing may cause risks of negotiable instruments and cashing out negotiable instruments,then cause the funds idling,run afoul of the goal for support of the development of physical economy,impose threat on financial stability.Because of this,this Chapter propose that,through analysis of the legal difficulties of the negotiable instrument financing under the current domestic negotiable instrument legal frame,lay a foundation for designing realistic and feasible negotiable instrument financing institution.CHAPTER ? is “Practice and Introspection of the Negotiable Instrument Financing”.During the recent years,China and foreign countries all tried to make innovation of the negotiable instrument financing from the perspectives of institution and business,e.g.,China proposed negotiable instrument funding management scheme based on usufruct of the negotiable instruments as underlying capitals,financial negotiable instruments mainly in the United States,Japan and Taiwan Region,also the internet negotiable instrument financing led by Fundbox,MarkInvoice,and Behalf.However,the aforesaid methods of negotiable instrument financing either do not render a satisfactory result or do not fit the current domestic social and economic environments.This Chapter,through comparison and introspection of different types of innovations of negotiable instrument financing,provides referred experience and suggestions for China's negotiable instrument financing innovations.CHAPTER ? is “Solutions for the Negotiable Instrument Financing – the Negotiable Instrument Financing Innovation based on Electronic Negotiable Instrument Standardized Debt Rights”.Combining the relatively mature institutional design existing in the domestic financial market,this Dissertation proposes feasible avenues for the negotiable instrument financing should be based on the electronic negotiable instrument standardized debt rights.One of the most important conditions for the electronic negotiable instrument standardization is the equal division of the electronic negotiable instruments.This Chapter divides the equal division of the electronic negotiable instruments into the divisibility of negotiable instrument vouchers and the divisibility of negotiable instrument rights.When arguing about the presumption that the negotiable instrument vouchers have divisibility,this Chapter fully elaborates the negotiable instrument rights also have divisibility,thereby to realize the standardization of the electronic negotiable instrument.Then,this Chapter proposes reconciliation and minor modification for standardization of electronic negotiable instruments should apply the Negotiable Instrument Law.Because of this,this Chapter would take examples of negotiable instrument standardized debt rights,assets securitization of negotiable instruments,derivatives of negotiable instruments,to plan and design the negotiable instrument financing based on the electronic negotiable instrument standardized debt rights;take examples of net amount settlement institution of negotiable instrument central counterparties,negotiable instrument credit rating institution,negotiable instrument as market maker institution,to plan and design the negotiable instrument financing based on the electronic negotiable instrument standardized debt rights.Finally,combining the development trend of financial science and technology,this Chapter combines the electronic negotiable instrument standardized debt rights and intellectual agreement supported by the block chain technologies,proposes prospects for the electronic negotiable instrument financing under the financial science and technology background. |
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