Research On The Negotiable Instrument Forgery

Negotiable Instrument forgery is a form of the flaw of instrument, it is a special and complex issue of the legal relationship of negotiable instrument, in fact, it is a flaw of the behavior of negotiable instrument. The emergence of negotiable instrument damages the circulating system seriously, effect on the safety of negotiable instrument; cause the loss of the parties in action. So among the clients concerned in most countries begin with the fact rule the effect of the behavior of negotiable instrument, to balance the interests of the relative persons, to distribution the responsibility, and to protect the legal rights. It is start with some legal problem of the negotiable instrument in practice, discuss about the liability afford of the negotiable instrument, the right of defense, and the burden of proof, to help to solve the practical problem. I divide this thesis into three parts, each part talks about those problems above, Specifically, the logical clew and configuration of this thesis as follows:The first part mainly discusses how to carve up the liability between the parties of negotiable instrument. There are two theoretical forms, one is Kildor-Hicks theory, the other is the principle of loss contribution. Chinese Commercial Instrument Law affirms a form of signature in charge, but the forger dose not sign it, so he will not afford the liability. Then it analyze draw on negotiable instrument forgery, the forged endorsement on negotiable instrument, acceptance of negotiable instrument forgery and assurance negotiable instrument forgery.The second part mainly discusses the right of defense of the negotiable instrument forgery. Through the analyses of a case to talk about. The defense of the negotiable instrument is the right to reject the duty of performance of the debtor. In the relationship, the oblige has right of claim for payment and the right of recourse, but the defense of the negotiable instrument is for the debtor. It is a method of defenses for debtor to protect himself. To ensure the negotiation, avoid to abuse right, there is defense cut off institution, it is for direct clients. Then I talk about the liability of the part whose signature has been forged, he is not sign on the negotiable instrument, so he dose not afford any liability. So the holder gain it for goodwill can't exercise the right to the part whose signature has been forged. The authority thinks that the part whose signature has been forged can claim matter defense, reject to pay to anybody. To confine the right of defense is to confine abusage; it is the demand for negotiation, and the inevitable result of no cause. If it is like the Civil Law, the right of defense of debtor can be act to any creditor, whatever how many times the negotiable instrument conveyed, it means that the client is face to be reject. And the more times it conveyed, the more possibility to be reject. The creditor feels discomposure, it is bad for negotiation. At the same time, the no cause of negotiable instrument indicates that the law relationship is independency, it ensures negotiation. The claimant gain it by justice approach, thinks about the right of the negotiable instrument, but not if the holder get it with flaw. He want the right, not the dispute, even the lawsuit. So for the demand of the theory and practice, is to protect the claimant's behalf to be confined.The third part is the issue of burden of proof afford of negotiable instrument forgery. This part expounds the rules of burden of proof in the Civil Procedural Law, it is afforded by the one who claim commonly, who claims who put to the proof. Now days, because the case is so complex, accord to only one standard is not enough. For example, some special tort case, only accord to this principle affect justice, so there is convert burden of proof. So choose the principle rational is important. But burden of proof afford of the Commercial Instrument Law is not the same as the Civil Procedural Law. The negotiable instrument is a model of formal instrument is no cause, so it is the most directly and important evidence. The other evidence to proof the bill relations is not as the indirect parties provide. But in the practice of the negotiable instrument, some dispute is related to the proof of causality and defense reason, the burden of proof become complex as it. At last I talk about the burden of proof of defense of negotiable instrument forgery, the debtor defenses for the seal is forgery must afford the burden of proof.