Study On Loss Allocation In Negotiable Instruments Payment

The information asymmetry is the objective phenomena in the daily life. Asymmetric information of negotiable instruments dealing exchange is the reason that causes the wrong payment of drawee for the negotiable instruments. It is the reason that influences the negotiable instruments circulation and dealing safety at the same time. Under the circumstance of asymmetric information, that the loss is reasonably allocated caused during the process of negotiable instruments circulation is one of the crucial factors that makes the negotiable instruments system operate efficiently. In the view of comparative law, there are no explicit terms in the unified negotiable instruments law of Geneva, but the loss allocation principle on negotiable instruments payment can be acquired by analyzing institutions such as theory without being authorized, theory of compulsory format, theory of written paper and negotiable instruments forgery, fraudulent alteration or agent without being authorized. The explicit terms on loss allocation in the negotiable instruments payment are made on the precondition of the true signature and drawee's offence in the negotiable instruments law of the Great Britain and American. Our negotiable instruments law belongs to the negotiable instruments law of Geneva so that there are no explicit terms on loss allocation of wrong payment in the negotiable instruments payment. In practice, that the Supreme Court interprets distensibly great loss in negotiable instruments law makes drawee's censor duty from formally to materially, from offence duty to strict duty, which conflicts directly the terms of our negotiable instrument law and dealing custom of banking. General principles on loss allocation are summed up by probing into rationality of drawee's formal censor duty under the circumstance of asymmetric information, and analyzing loss allocation on specific cases in the negotiable instruments payment on the condition of its constraint terms. There are three chapters in all. The first chapter is about negotiable instruments payment under asymmetric information. Firstly, economic theory of contract is exploited to discuss the influence of asymmetric information on drawee's dealing. On the condition of asymmetric information of negotiable instruments dealing exchange beforehand, drawee can't make sure of the different price by estimating the hidden risk of a negotiable instruments so as to only charge the same fees on different risk negotiable instruments. Exorbitant price makes well-meaning negotiable instruments party seek for other substitute system. With the withdrawal of well-meaning negotiable instruments party, drawee's loss will increase furtherly and huff is the rational choice of drawee. Converse choice will cause negotiable instruments system to end. On the other hand, the high cost is enough to prohibit rational drawee from trying hard although drawee may get the negotiable instruments dealing information by the check of the third party. Payment is not legal duty but drawee's right and refusal to drawee's paymenmt entrust is the drawee's rational choice. So it is no feasibility to require the draw to do the substantial censor duty, which only makes negotiable instruments system go towards breakdown. From the view of guaranteeing drawee's right in negotiable instruments law, rationality of drawee's formal censor duty is explored through the general principles of negotiable instruments law. It is the two aspects of one issue that negotiable instruments law gurantees the drawee's right and asymmetric information is solved. The reason that causes wrong payment lies in that information asymmetry during the process of negotiable instruments circulation, so the safeguard of drawee is firstly to solve the asymmetric information. Drawee has no way to acquire all the dealing information during the process of negotiable instruments circulation or the excessive cost by the third party 's check on information, so it is the best choice of negotiable instruments system design to restrict the information that influences drawee to bear duty to thedefinite bound by filtering the information on the certain condition during the process of negotiable instruments circulation. negotiable instruments law limits the information that influences drawee to bear duty by regulating the no causes, compulsory format and written format of the negotiable instruments dealing and makes the drawee's censor duty be centered on the par negotiable instruments in fact. The second chapter is about loss allocation in the negotiable instruments payment under the formal censor duty. At first, the concept of loss allocation is classified, and the reason of loss allocation, the loss allocation types of wrong payment and loss allocation are classified. Loss allocation is thought as that during the process of negotiable instruments circulation, negotiable instruments causes misfeasor to lose on the condition that blank complementary party abuses the right, has no agent right, forges or counterfeits when the blank negotiable instruments appears, and how to allocate loss during the negotiable instruments parties after the misfeasor has no way to be verified or be bankrupt. Drawee pays subjects mistakenly and there are two kinds that make negotiable instruments parties cause loss. One loss comes from that drawee pays one who has no right and makes the real negotiable instruments holder have no ways to ask for payment. In this case, drawee's payment is thought as well-meaning payment and the real oblige needs burden the loss caused by wrong payment if drawee does the formal censor by law. The other loss is that drawee pays the negotiable instruments holder without being authorized by remitter so as to cause the drawee self loss or remitter loss. Remitter can't bear the loss of wrong payment unless something is wrong with remitter. It can be used the term on the third party discharge in the civil law when drawee's payment needs the third party discharge. On this basis, the loss of negotiable instruments payment on the specific cases is dicussed. These cases can be divided into two:one is that remitter does not entrust for payment or drawee's payment does not agree with...