Research On Succor System For The Negotiable Instrument Loss

Negotiable instrument is complete securities. The production of thenegotiable instrument right needs making into the negotiable instrument;thetransition of the right needs delivering the instrument;the performance of theright needs prompting instrument and the realization of the right needspurchasing the instrument. The negotiable instrument right could not departfrom the instrument itself. In the process of using and circulating of thenegotiable instrument, the damage of the surface of the instrument results thatthe instrument becomes a piece of paper without any value. Or it is oftenunavoidable for the instrument to be stolen, robbed or lost. In this way, theperformance of the right is restricted seriously and thus the interest is harmed.As the insurance law of the negotiable instrument right, the negotiableinstrument law should give the reaction. The succor system of the negotiableinstrument loss thus comes into being. The negotiable instrument law of ourcountry prescribes at the same time three kinds of succor means for client, thatis, the countermand and suspending of the payment, public summons forexhortation and common lawsuit. As for how concrete succor means isapplicable, the existing legislation is either unclear or consultative. Therefore,this thesis selects the succor system of the negotiable instrument loss as theresearch subject, through applying comparative analysis and the empiricalanalysis to discuss the succor system of the negotiable instrument loss in orderto provide the advice for the perfection of legislation.This thesis is composed of four parts: the first part is the research on thebasic theory of the succor system of the negotiable instrument loss, which isthe presumption and basis of the latter parts;the second, third and fourth partsare the researches on the countermand and suspending of the payment, publicsummons for exhortation and common lawsuit, which are the specialsubjectsresearch based on the research results of the first part.The first part includes the meaning of negotiable instrument loss and theperson losing the negotiable instrument and the succor system of thenegotiable instrument loss and the means of the negotiable instrument loss.The core lies in the research on the "person losing the instrument". Theauthor thinks that to prescribe the "person losing the instrument" in themeaning of the negotiable instrument law, one must solve two presumptivequestions, that is, the meaning of the prescription of it and the standard forthe prescription. It is shown that making the prescription for the "personlosing the negotiable instrument" in the meaning of negotiable instrumentlaw is for solving the applicability of the main body of the clients of publicsummons for exhortation and common lawsuit. Therefore, while defining thedesignating the standard, one must consider whether the fact that thenegotiable instrument has lost constructs the risk and whether there aresuccor means in law could be used. "Person losing the instrument " includesbut is not restricted within (1) the holder just before the loss of thenegotiable instrument;(2) the payer of the negotiable instrument withoutthe letter "paid" after payment with the negotiable instrument;(3) the checkdrawer, endorser and applicant losing the negotiable instrument beforepaying the negotiable instrument;(4) the endorser getting the negotiableinstrument through trusting the drawing the money and the endorsementand setting the endorsement and the depository of the negotiable instrument;(5) the negotiable instrument holder who lawfully getting the negotiableinstrument but without the right to use the negotiable instrument due tolack of some important conditions before losing the negotiable instrument .The second part first makes the comparative research on the legislation ofthe countermand and suspending of the payment and points out thedifferencein the effect of the applicable scope, applicable procedure and thesuspending of payment notice, etc. On this basis, the author criticizes theexisting research results, analyzing the existing relevant prescription andanswering the difficult problems in practice. In theory, there is no meaning inpaying attention to the applicable scope of countermand and suspending of thepayment. On one hand, the prescription of time of the system of countermandand suspending of the payment determines that it is impossible to require thepayer to examine the qualification of the notifier of countermand andsuspending of the payment and the quality of the negotiable instrumentreferring the crime;on the other hand, the aim of avoiding to be misusedthrough restricting the applicable scope of countermand and suspending of thepayment could be achieved through other means. In legislation, there is no realmeaning for the prescription of the first item of the fifteen article of"Negotiable instrument Law";the prescription of the nineteenth article of"Performance Means of the Negotiable instrument Management" and theForty-eighth article of "Paying and Settling Means" not only surpass the taskof the legislator, but also show strong color of the department for protectingthe bank interest. Therefore, it should be modified. In practice, it should allowthe countermand and suspending of the payment for the loss of the blanknegotiable instrument, undue negotiable instrument and negotiable instrumentsurpassing the prompting time for paying. Based on this, the author designsthe concrete applicable rules for the countermand and suspending of thepayment.The third part regards the public summons for exhortation as thebreakthrough point to discuss the issues in theory aiming at the applicability ofpublic summons for exhortation. The explanation of the one hundred andninety third article of "Civil Lawsuit Law" needs linking with the backgroundof the legislation. The "endorsable and assignable negotiable instrument "inthis article should not be understood as the restriction of the negotiableinstrument , but the statement for the traits of the circulation of the negotiableinstrument , since while issuing the existing "Civil Lawsuit Law", there wasno negotiable instrument and therefore the circulation of the negotiableinstrument was restricted. There are misunderstandings for the recognition ofthe negotiable instrument. It is suitable to regards the "endorsable andassignable negotiable instrument" as the circulation to describe. Furthermore,the "Prescription" of the Supreme People Court has shown the trends ofexpending the applicability scope of the public summons for exhortation andthe understanding of this thesis includes the cognition of the present judicialfield. According to the prescription of the second item in the one hundred andninety fifth article, for the third party who gets the negotiable instrument forgood intention during the public summon for exhortation could not get theprotection. Therefore, it is not scientific. There are also shortcomings in therelevant thirty-fourth article. After the people court makes the judgment for thedeprivation of the right, although with good intention without any mistakes,the third party could not get the right. However, it could look into the civilduties of its predecessor to defend his interest. After the applicant of the publicsummons for exhortation gets the sentence of the deprivation of the right, henot only could plead the payer to pay the money, even when being refused, healso could perform the recourse right to the predecessor. When the party traceddenies that he ever signed his name or sealed to counterplea with the excuse ofwithout performing the maintaining the measures, the person losing thenegotiable instrument should bear the duty to provide the testimonies.The fourth part is the research on the procedure of the public summonsfor exhortation as the means of succoring the negotiable instrument loss. It isthe outcome of negotiable instrument legislation of our country with referenceto the law of the Great Britain and U.S. to allow the person losing thenegotiable instrument to realize his negotiable instrument right throughcommon lawsuit. With the reference to the law of the Great Britain and U.S.,the author answers the difficult problems in practice. There are differentopinions on whether the person losing the negotiable instrument could requirethe person giving the negotiable instrument to give a new one between the"Prescription" of the Supreme People Court and the scholars. The authorthinks that the reasons of the scholars to oppose the opinions of the court arenot sufficient. However, due to that there is no prescription for the negotiableinstrument duplication system, the "Prescription" of Supreme People Courtlacks the definite lawful support, which results the accidental trouble inpractice. The author also takes the view that when the person losing thenegotiable instrument requires the person giving the negotiable instrument togive a new one to him, he should provide the assurance, which is the commonrecognition between the scholars and the Supreme People Court. However, forthe concrete rule for providing the assurance, there is blank in the"Prescription" of the Supreme People Court. The author thinks that theassurance provided by the person losing the negotiable instrument could beasset assurance and the assurance of somebody. The amount could accordswith the agreement of the person incurring the duties, without the necessity ofaccording with the denomination. If due to the objective reasons, he could notprovide the assurance, he could plea the court to drawing by sentencing.Finally, in order to exert the whole advantage of succor system of negotiableinstrument loss of our country, the author suggests connecting the publicsummons for exhortation with the common lawsuit procedures and makes theinvestigation with the comparative means, empirical analysis and illustrationin theory.