Research On The Right Of Blank Bill

In the modern society bills play a more and more important role. As totally negotiable securities, bills and the right on them are considered as a whole. As long as one has the ownership of a bill, he enjoys the right on it. Therefore, bills are a kind of formal securities, i.e., the validity of bills depends on their formal essentials. If there is no any absolute item of record, the bill becomes invalid. But in the real economic activities, it is very common that a drawer is not sure about payment or payment place or other items when he draws a bill, while objectively it is required that the bill should be issued. Hence, almost all the countries in this world accept blank bills to varying degrees. With the development of China's market economy, a large number of blank bills will appear inevitably. Although the system of blank cheques is stipulated in China's Bill Law, the stipulation about blank supplementary right is quite rough and simple. This thesis starts with a research on the right of blank bills, uses some standpoints in this academic field for reference to analyze legal principles, and at the same time justifies the standpoint of the thesis with cases, in order that the legislation of blank bills could be improved further. The thesis is composed of three chapters. Chapter One discusses the acquisition of the right of blank bills. Chapter Two discusses the transfer of the right of blank bills. Chapter Three discusses the exercise of the right of blank bills.Chapter One first holds the idea that blank bills are not invalid bills and can be transferred by endorsement or delivery. The reason why blank bills can be circulated is because they will become valid in the future. The blanks on blank bills are not filled in fully when blank bills are drawn in order to be filled in later. There is no any impact on the obligee of the blank bill no matter when the blank bill is filled in fully. As long as it is filled in fully before the exercise of right, it will become a valid bill. Legislators don't hope that blank bills enter the field of circulation because more complicated relationship is involved in blank bills, more disadvantages occur on drawers. Whereas, a drawer can proclaim a counterplea against the present holder of the blank bill if a transfer of supplementary right occurs in real. But in this way we confuse bill relations with outer-bill relations and deny bills'abstractness, hindering circulation of bills. Thus, from the point of view of bona fide acquisition of bills, the thesis argues the acquisition of right of blank bills and comes to a conclusion that the holders of bills acquired in bona fide acquisition way shall enjoy the right of bills and the same case for blank bills. Blank bills can be circulated entirely and their holders can enjoy the right of blank bills of bona fide acquisition. The thesis respectively illustrates bona fide acquisition of blank bills without payment and payee.Chapter Two discusses about the transfer of right of blank bills, induces and summarizes transfer ways of three kinds of blank bills, that is, mere delivery transfer of blank bills, endorsement transfer of blank bills and pledge of blank bills. Concerning mere delivery transfer of blank bills, the writer holds the following opinion that bills are totally negotiable securities, which decides the realization and possibility of mere delivery transfer. Right of bills will be transferred with the transfer of bills. The bills with payee blank belong to bearer securities from another angle. Delivery transfer itself is one way to transfer bearer securities. In real business activities, delivery transfer of blank bills for business convenience and benefit occur widely. Accepting mere delivery transfer of bills can further improve circulation of bills and bring benefit function into play. Concerning transfer of endorsement of blank bills, although blank bills lack necessary items of record, this lack is based on that the drawer keeps it intentionally and the drawee is bestowed with supplementary right. Hence, the law accepts the validity of the drawing of blank bills. The bills are attached by special conditions. Only when the bearer fills in all the blanks, can the bills play the role of complete bills. Since drawing of blank bills is valid, other bills behavior such as endorsement and acceptance concerning blank bills are also valid in view of the same reason. Additionally, after blank bills are filled in fully by an authorizer, the bearer can exercise right of bills. No matter transfer of bills happens before or after the bills are filled in, in principle, there is no impact on right of bills. A transfer of a blank bill happens before it is filled in fully, the right to fill it in is released to the alienee, so the bearer of a blank bill, i.e., the predecessor of the person with the right to fill in the blank bill, exercises two effects at the same time on the transfer of the blank bill: a transfer of a blank bill and a transfer of the right to fill in a blank bill, the former behavior is the carrier of the latter. This kind of right of blank bills is not practical right which can get profit immediately, but is potential future right of bills. After a blank bill is filled in fully by the person with supplementary right, the bearer of the successor of the person with supplementary right will not get the right to fill it in, for what the bearer accepts is the bill itself after it has been filled in. The right behind the bill is a kind of practical bill right. Its bearer can directly ask payment from the debtor according to the bill. In view of the practice of bills, if the transfer effect of the endorsement of blank bills is accepted, it can be avoided when it is difficult for the legal bearer to safeguard his own legitimate rights and interests due to a difficulty of adducing evidence, which is in favor of the balance between the relationship of rights and obligations of the bill litigant. Whether a blank bill can be pledged or not is not stipulated in China's Assurance Law. There are a lot of disputes about it in the academic circles. The writer holds such an opinion that the condition for the pledge of blank bills is the right of blank bills has not been transferred, so blank bills can be pledged.Chapter Three discusses the exercise of the right of blank bills. First, it expounds the determination of the right of blank bills. China's present bill legislation has not made any stipulation on the determination of vacant supplementary right. The writer thinks that China should adopt Objective Theory in order to better law. Whether vacant supplementary right exists or not in real does not influence the legal effect of bills. Whether vacant supplementary right exists or not, is just the main content of counterplea between the person who signs his signature and affixes his personal seal and the person who fills in a blank bill. The person who signs his signature and affixes his personal seal cannot oppose the bona fide bearer with it. Therefore, the proposition of Objective Theory is in conformity with the principle of bills'abstractness, in favor of safeguarding bona fide bearers'interests. An incomplete bill cannot become valid due to a lack of absolute and necessary items of record. Objective Theory advocates such an opinion that whether supplementary right will be conferred or not depends on whether item of record is blank or not on a bill. So it can maximally turn incomplete bills into valid ones and make the full use of the function of bills'circulation. Thereafter, the writer adopts induction and summarization again to further discuss legal effect and time effect of blank bills. Before and after supplementary right of blank bills is exercised, blank bills exist and produce different effects legally. Before the person with the right to fill in the blank bill exercises the supplementary right, the blank bill is an incomplete bill, lacking absolute and necessary item of record of valid bills. The person who signs his signature and affixes his personal seal on a blank bill will not take any responsibility of bill responsibility for the incomplete bill. After the person with the right to fill in a blank bill exercises supplementary right in line with authorization, the blank bill will become a complete bill, which is legally equal to bills with complete record from the very beginning. The bearer can exercise the bill's right with the bill, besides, supplementary right of blank bills has the effect of tracing back issuance behavior of blank bills. In accordance to the effect, the drawer and other debtors should not carry out a counterplea due to a lack of essentials when the bill is issued. The time effect of bills refers to the extinctive prescription of a bill's right, i.e., if the obligee does not exercise his right within a period, the right will become extinctive and the obligor has the right to refuse the obligee's request for right. Finally, the writer briefly sets forth the counterplea of right of blank bills. Blank bills are special bills, which are the same as complete bills after they are filled in fully. A bill's obligor should undertake the responsibility of the bill's obligee. The exercise of this kind of supplementary right is a special agreement between the bill's obligor and the bill's obligee. If the supplementation of the bearer is beyond the authorization of the bill's obligor, i.e., drawer, the bill's obligor can carry out a counterplea in line with the special bilateral agreement, that is, only when the person with supplementary right of blank bills abuses supplementary right, can the bill's obligor carry out a counterplea. For the third person who confers supplementary bills improperly, if he doesn't cause any malice or great loss, in view of business safety, the person who signs his signature and affixes his personal seal on a blank bill should take the responsibility of the bill for the third person and should not carry out a counterplea against the third bona fide person with abuse of supplementary right.