Issues On Legal Relief To The Loss Of A Negotiable Instrument

A negotiable instrument is potential currency created by a merchant, as well as aportfolio with certain amount issued according to the law by the drawer to be paidunconditionally by itself or its authorized agent. A negotiable instrument, as a kind offinancial means, is a carrier of commercial credit, playing a quite important role in thecommercial activities and capital flow of the whole society. At the beginning, underthe thought of cash payment, it made means of a payment tool. With the development ofcommercial habit and the standardization of commercial credit, a negotiable instrumentacted as the circulative tool of commercial credit again. The reasonlessness andindependence of a negotiable instrument behavior make the circulation of a negotiableinstrument separate from the basic relation (namely a negotiable instrument reasonrelation, a negotiable instrument fund relation, a negotiable instrument booking relation)of a negotiable instrument, and the assignee of a negotiable instrument has obtained akind of more high-quality creditor's rights. Circulation is the vitality of a negotiableinstrument, and strengthening the circulation of a negotiable instrument is also the legalfunction of the negotiable instrument law.A negotiable instrument is a kind of suggestive security. The right of a negotiableinstrument is combined closely with a negotiable instrument. Namely only by obtainingthe negotiable instrument can it obtain the right of a negotiable instrument. To proveone's own negotiable instrument right needs to show the negotiable instrument. It needsto hand over the negotiable instrument to transfer the right of a negotiable instrument.To execute the right of a negotiable instrument needs briefing on the negotiableinstrument. The right of a negotiable instrument is totally combined together with thenegotiable instrument. Losing a negotiable instrument means losing the right of thenegotiable instrument. However, according to the fair principle and the common customprinciple of civil law, the loser of a negotiable instrument shall have the right to obtaincorresponding path of legal relief.There are three kinds of legal relieves to the lost negotiable instrument in the world:Report the loss for payment suspending, the system of publicizing public notice forassertion claims, and the negotiable instrument lawsuit system. The system ofpublicizing public notice for assertion claims is a traditional practice in the countriesadopted continental law system. As the procedure for publicizing public notice forassertion claims confirmed in chapter 18 of the civil procedure law in 1991 in China, ithas established the foundation of the legal system for the publicizing public notice forassertion claims, and has been improving constantly in the judicial practice. Thenegotiable instrument lawsuit system is originally a means in countries of Great Britain& American law system. In 1996, in the Law of the People's Republic of China onNegotiable Instruments, the negotiable instrument lawsuit system is boldly introducedas another kind of the negotiable instrument relief system, accordingly perfected therelief system for a negotiable instrument loss in our country, as well as offering reliefalternatives for loser of a negotiable instrument.Chapter one of this paper discusses theoretically that the laws on negotiableinstrument has the legal characteristic of a commercial law;it is the essential attribute ofa negotiable instrument system to promote the circulation of a negotiable instrument;itis the value ascription of a negotiable instrument law to ensure circulating safety.However, once the circulating negotiable instrument loses, conflict will occur betweenthe circulation and security. The negotiable instrument law should make balance wellthe circulation and security of a negotiable instrument. The loss of a negotiableinstrument should get legal relief.Chapter two of this paper, through analysis on introducing the concept andfunction of the system of publicizing public notice for assertion claims in our country,confirming the range of a negotiable instrument applicable to the publicizing publicnotice for assertion claims, subject applying for the publicizing public notice forassertion claims, the period decision of public notice, the awareness inference of thepublic notice, the decision for payment suspending effectiveness of the public noticeand the subject in the public notice, reveals that the essential of the public notice systemis a system that the country utilizes its public power to prevent by force the circulationof the a negotiable instrument and offer conscientious relief to the loser. However, thismethod will unavoidably conflict with the current negotiable instrument system andinfluence the circulation of a negotiable instrument. Meanwhile, it is regarded that ifimplemented completely the public notice system, certain current concrete negotiableinstrument systems in our country, such as the system of bank draft, will be cancelled.Chapter three of this paper, by introduction the negotiable instrument lawsuitsystem and its comparative analysis with public notice system, expounds that thenegotiable instrument lawsuit system not only solves the relief problem to the loser, butinfluence on no the circulation of a negotiable instrument, furthermore damage no theinterest of the third party obtaining it with good intention. The lawsuit system of anegotiable instrument is a kind of relief method that has the lest influence on thecirculation of a negotiable instrument, which gives consideration to the interests and fairprinciple of all parties of a negotiable instrument, and relaxes conflict between thecirculation and security due to the loss of a negotiable instrument. And it also putsforward some proposals to the combination of public notice system and lawsuit systemof a negotiable instrument in our country, proposing that a negotiable instrument lawsuitsystem should be preferentially applied to bank draft within payment period, blankcheque with authorized endorsement, commercial draft with longer maturity, so as toavoid the severe conflict between the circulation and security of a negotiableinstrument.