Research On The Issues Of Guaranty Of Negotiable Instruments

The Bill is the main credit means of payment in the modern economic life. With the development of international trade and economy, the circulation of commodities is widespread as well as expansive day by day and the commercial credit bill has become the objective request of the market economy. Bill system is to pursue the circulation of bill to be convenient and safe as its legislative purpose. In order to guarantee the bill debtor to fulfill his own responsibility,to safeguard bill's circulation and security and to enhance the bill credit, most national and local Bill Laws have stipulate the Bill Guarantee System. The function of bill guarantee system lies in the supplement on insufficient credit of specific debtor and the promotion of negotiable instruments'circulation.The guaranty of negotiable instruments that is designed for an item of bill system is to protect the bill creditor's benefit and to promote bill circulation safely and quickly. Guaranty of negotiable instruments is one kind of attached bill behavior. It means that the third person whose purpose is to protect the same bill debt takes aim to guarantee bill debtors'fulfillment and records the related item with signature, then returns the bill back to one who requests for guaranty. The guaranty of negotiable instruments is the extension of the civil law guaranteed system in the commercial field, thus the bill guarantee has both characters of civil guarantee, namely subordination,and bill behavior, namely independence. It is the union of this two contradictory matters.But compared with the bill law research history of western developed countries, we should see that our country's bill law research is still at the start stage. Because of our country's long-term planned economy, the commodity economy develops slowly. In addition, our traditional legislation pattern is union of civil law and commercial law. Therefore, most persons regard bill guarantee system still staying at traditional civil law consciousness but not rising to commercial law consciousness. This does not seem to be scientific. At the same time, the bill guarantee stipulation which related to our country's "Bill Law"is simple. There are still many problems which are worth discussing, for example, bill independence, bill subordination and so on. Thus, the research on guaranty of negotiable instruments appears to be extremely significant. Starting from the concept and present situation of bill guarantee system, this article elaborates the constitutions,the comparison of bill guarantee and correlative concepts,the responsibility and right,as well as some practical problems of our country's bill guarantee.Part one relates to general discussion of bill guarantee. This part briefly introduces the meaning,characteristics of guarantee behavior,bilateral litigants,the types,suitable scope and the great significance of guaranty of negotiable instruments in the bill law system. It takes aim to leave the overall impression of bill guarantee for everybody.Part two discusses bill guarantee and comparison of correlative concepts. Owning to originate from civil law guarantee system, there are most similar factors with bill guarantee and civil guarantee which are easy to confuse. But, the two have the differences after all and we must make it clear. This article performs to elaborate the differences. The root of their differences lies in different objects and value orientations. Then, the article shows the two main differences from the factors of legal behavior,meaningful expression of legal behavior,independence,guarantee validity and so on. In addition, the bill guarantee and the bill endorses also have the enormous similarities. The both have the stronger guarantee function. However, they are different in behavior goals,guarantee responsible scopes,behavior body and its continuity. It is important to explain that there are the contrast between bill guarantee and bill payment system. The bill guarantee payment system seems to belong to the cheque uniquely. It is a kind of attached bill behavior which refers to payer's willing to undertake the responsibility to pay money. The bill guarantee and the bill guarantee payment both pursue the goal to promote the bill circulation smoothly, but the two have obvious differences which are discussed in this article.Part three discusses the constitution factors of bill guarantee. The bill guarantee belongs to one kind of the bill behaviors, thus its constitutions are discussed correspondingly from substantive factors and pattern factors. From substantive aspect, this article mainly analyses the body of bill guarantee and guarantor's meaningful expression. It takes great emphasis to discuss that whether bill guarantee behavior will lead to invalid guarantee in the situation of defective meaningful expression. From pattern aspect, the article mainly illustrates absolutely essential record item and relatively essential record item. After analyzing this two aspects, this article continues to illustrate the types of invalid bill guarantee and its legal consequence.Part four illustrates the responsibility and right of the guarantors. As soon as the bill guarantee has been established, it produces effect to bill litigants. Thus, guarantors, holders as well as guarantees can take place right–responsibility relations with each other. But, the effect of bill guarantee concentrates to the guarantor's responsibility and right, therefore, this part analyzes the guarantor's responsibility and right. The bill guaranteed responsibility requests strictly in the form and independently in the content. Meanwhile, the guarantors are entitled with defensive right and traceable right by Bill Law. It carries on protecting guarantors in order to enforce the bill circulation, simplify settlement procedure and promote the development of market economy. The guarantor's responsibility is subordinate and associative. Guarantor's right mainly includes defensive and traceable right and guarantors should be allowed to use the defensive right on special occasion.Part five is dealt with practical problems of guaranty of negotiable instruments and reflections on the perfection of negotiable instruments guarantee system. We had better start to analyze the bill guarantee questions with practical verticality. In order to establish the solid foundation for Bill Law theory, we should inspect not only practical problems but also various countries'legislation. This part analyzes the practical questions such as hidden guarantee and discount guarantee. It also demonstrates the independent and relative characteristics from another point. Moreover, this part puts forward the consummate personal suggestions on partial guarantee,omitting guarantee,cheque guarantee and record items of current guaranty of negotiable instruments.