Research On The Prescription Of The Negotiable Instruments

With the fast development of the market economy in China,the importance of the negotiable instruments as the tools of delivery and financing is increasingly apparent. The law on negotiable instruments plays a significant role in ensuring the circulation of the instruments. The prescription of the negotiable instruments is one of the important parts of the law on negotiable instruments and it has a tight relation with the common prescription,that is ,it is the application of the common prescription in the field of the commercial law. Compared with the common civil rights,the rights on negotiable instruments have their own particularities. So the rights on negotiable instruments have some special demands for the prescription. Thus the prescription of the negotiable instruments is not the simple copy of the common prescription and there are many differences between the prescription of the negotiable instruments and common prescription. Considering the particularities of the negotiable instruments,the rights on negotiable instruments and the legal relations of the negotiable instruments,the author attempts to have a general research on the prescription of the negotiable instruments on the basis of the regulations of common prescription.The property of prescription of the negotiable instruments is defined first in the article because of its importance. The property will affect the concrete institutional arrangement of the prescription. It seems more important to investigate the question in China,because the common law and law on negotiable instruments adopt different concepts to put across the meaning about the situation of nonuser for a certain period. The author applies the basic theory of the civil prescription to analyze the two concepts and reach such a conclusion that the properties of the two concepts are the same,namely the prescription of the negotiable instruments is the applications of the limitation of action in the field of law on negotiable instruments. The prescription of the negotiable instruments depends on the common prescription. People should comply with the special rules of the law on negotiable instruments. If there are no definite rules in the negotiable laws,people may turn to the rules of the common prescription.Later the author discusses the short term and the particularities of the objects of the negotiable instruments. Negotiable instruments are papers with negotiability and there are always several obligors on one piece of debt. If the obligee cannot exercise his right of claim in time ,the debt will not be terminated rapidly which will do harm to the stabilization of the social relations. To supervise and urge the obligee to exercise his own rights,the laws on negotiable instruments regulate a short-term prescription in many countries. The objects of the prescription of the negotiable instruments include the right of claim for a payment and the right of recourse,which makes the prescription of the negotiable instruments more complex than the common prescription.During the proceeding,invoking the accomplishment of the prescription is a statutory duty of the judge in our country. It is different from the practices in many other countries. The author discusses the illogicality of this rule and asserts that it is the parties that should invoke the accomplishment of the prescription actively. The judge should verdict if the accomplishment of prescription exists in faith and admit the effects of it. When a right on negotiable instruments is not exercised within the limitation of action,there will be some effects on the right itself,the other rights on the same negotiable instrument and the basic creditors' right. The author thinks the rights on negotiable instruments will lose its enforcement and become nature debts. Except as otherwise stipulated by law,generally speaking,the prescription of other rights on the same negotiable instruments will not be affected. Nor does the basic creditors' rights. There are some conditions which confine the application...