The Research Of Cancellation Of Bill

As an important manifestation of the defect bill, the cancellation of bill refers to the behavior which eliminates the signature on the note or other recordation, it is a special and complicated problem in the bill legal relation. In many law cases, it often happen that party to a bill or others eliminates the bill, so we should regulate the cancellation of bill, it is important to reduce dissension of bill and promote negotiation of bill. Most country legislates about it in their negotiable instrument law but we have not, this definitely will influence normal exertion of bill function. Whereas our country went short of the cancellation of bill theory and legislation, this paper go deep into discuss the rules of cancellation of bill, hope to solve practical problem and perfect our negotiable instrument law. There are three parts in this text: In Chapter One the author addresses the research value of cancellation of bill, this chapter has two sections. The first introduces and analyzes some cases about cancellation of bill in life, brief introduces the attitude to cancellation of bill in Japan and Taiwan legal rules, accepting in legislation it can solve dissension of bill. To us, the note which records wrong only can blank out and drawn again, though this can limit the behavior about figuring for wrongful benefit by using the measure of cancellation, yet it will block negotiation of bill badly and also opposite to law's tenet. So it is important to distinguish cancellation of bill with forgery of bill, alteration of bill and changing of bill, discuss the validity of cancellation of bill and legislate it to solve the problem in life. Section 2 expatiate the academic value when it legislate. First, it reacts on protecting client's rights and interests and also safeguarding well note negotiable system. Second, it can predigest note relation, contract note negotiable system, quicken note negotiation and favor clients protect their note rights. The last, it can make principle of autonomy of the parties incarnate adequately. Chapter Two has four sections, the author identifies the cancellation of bill. Section 1 introduces the definition of cancellation of bill. We can define cancellation of bill as a behavior which eliminates the signature on the note or other recordation. Whether we can distinguish the content which has cancelled or not, it influences no on the acknowledgement of cancellation. But some instance such as extent of cancellation will influence it. Section 2 expatiates the composing of cancellation of bill with main body, subject and method. Cancellation of bill should be done by someone who has the right of cancel when we look from the visual angle that it can bring legal efficacy on negotiable instrument law, and it considers no about canceller's purpose as a rule when judging cancellation of bill. There are many methods to cancel bill, it can form cancellation of bill so far as eliminating the signature on the note or other recordation. Section 3 compares cancellation of bill to other correlative concept. Compared to cancellation, forgery of bill often refers to the spurious signature of bill, they both relate to signature on behavior object but have obvious difference on subject and behavior mode. Alteration of bill refers to someone who has no right that alters the recordation on bill, compared to cancellation of bill, they both alter the recordation on bill, but differ to legal character. First, cancel only refers to eliminate but alter refers to not only eliminate but also add; Second, cancel need right but alter not; Last, most cancellations are legal but alterations are not. In practice, they both relateto the relation to continuous endorsement, we can draw a conclusion that the rule about continuity of endorsement is superior to the rule about alteration of bill by analyzing a case, and how the relation about cancellation of bill and continuity of endorsement should be, we will expatiate in chapter three. The rule about changing of bill is special provision in Tai Wan and our negotiable instrument law, know from cancellation of bill, change refers to transform but cancel refers to eliminate. This text expatiate the rule of changing of bill and its status in Anglo—American negotiable instrument law, solve the conflict between changing of bill and alteration of bill in our negotiable instrument law. Section 4 introduces the classification of cancellation of bill. Bases on legal position of canceller, we can classify cancellation as powerful cancellation and powerless one. Powerful cancellation can also be classified as purposive one and no purposive one according as subject. British and Tai Wan negotiable instrument law make a general provision of cancellation of bill in term of this classification. Bases on material bill act, we can classify cancellation as cancellation of endorsement, cancellation of acceptance and cancellation of crossing. Most cancellation present to material bill act, so this classification is too important for us to research the provision and application of cancellation of bill. In Chapter Three the author researches the validity of cancellation of bill. Studying the validity of cancellation of bill, relate to some material bill acts. For drawn of bill, it will be short of absolute necessary recordation and induce bill of no avail, there have no use for expatiate. This chapter includes three sections, respective discuss the validity of cancellation of endorsement, cancellation of acceptance and cancellation of crossing. Section 1 discussesthe cancellation of endorsement, introduces material status about it, expatiates different provision about the validity of it in Geneva, Anglo—American and Tai Wan negotiable instrument law, confirm its validity by distinguishing cancel different recordation about endorsement. When we cancel the whole or absolute necessary recordation, the endorser who has been canceled relieves his endorsement duty, the endorser whose order after the canceled one but recorded before cancel also relieves his duty. Here has definite legal provision between this and continuity of endorsement. When we cancel capable or incapable recordation, cancellation takes no effect, here is no problem about endorsement continuously or not. Only when we cancel relative necessary recordation, treated it as no recordation, endorsement takes effect. Here comes the relation between it and continuity of endorsement. By analyzing a case, this text introduces three different theories: the theory of right consideration, the theory of general endorsement and the theory of entire cancellation, construes them and educes that the theory of general endorsement should be adopted by us, when canceling the signature of endorsee we should cognizance the endorsement as general endorsement with no endorsee's signature, understand note holder as bill obligee. Section 2 talks about cancellation of acceptance. The cancellation of acceptance refers to the behavior that payer eliminates his acceptance before he hands the accepted note to the note holder. We can divide it into two parts, when canceling the whole acceptance, it should be regarded as acceptance of repeal, apply negotiable instrument law's provision about acceptance of repeal; but when canceling partial acceptance it should not be regarded as it, apply basic legal provision about cancellation of bill. Section 3 refers to cancellation of crossing.