On Bona Fide Acquisition Of Rights Associated With The Negotiable Instruments

Bona fide acquisition of rights associated with the negotiable instruments is a kind of legal institution that allows bona fide transferees to obtain rights associated with the negotiable instruments according to the legal ways of transfering instruments from persons who have no rights to dispose of instruments. It aims to promote circulation of instruments, guarantee the security of transaction, balance the rights and interests between the original rights holder and the bona fide transferee, and realize such values of law as social justice and economic efficiency. This thesis uses three chapters to give a comprehensive analysis and research on the basic problems of bona fide acquisition of rights associated with the negotiable instruments.In Chapter 1, the thesis discusses the fundamental theories of bona fide acquisition of rights associated with the negotiable instruments. After overviewing the theories' origin of bona fide acquisition of rights associated with the negotiable instruments, this thesis has revealed its theoretical basis and its practical ground in details. The theoretical basis lies in the fact that rights associated with the negotiable instruments and the instrument itself are inseparable. This makes negotiable instruments be similar to movables. So people can presume that the holder owns creditor's rights on the negotiable instruments according to his or her possession of the instrument. The practical ground is that, compared to the static security, transaction security can reflect freedom, justice, efficiency and order better in the era of commodity economy. Therefore, laws give priority to protection of transaction security and promotion of the circulation of instruments. On this basis, the thesis analyzes legislative structures with respect to bona fide acquisition of rights associated with the negotiable instruments of representative countries in both civil law and common law systems, and China as well.In Chapter 2, the thesis makes a research on the movement of bona fide acquisition of rights associated with the negotiable instruments. The author analyzes the constitutive elements of bona fide acquisition of rights associated with the negotiable instruments. Based on various doctrines with respect to constitutive elements of bona fide acquisition of rights associated with the negotiable instruments and in value of the principles of the Negotiable Instruments Law, the thesis puts forth and analyzes each element of such a four-element doctrine that a transferee will acquire his or her rights associated with the negotiable instruments: (1) from a person without due right of disposal of the instrument, (2) by the means of transfer that is prescribed by Negotiable Instruments Law, (3) in good faith, (4) with equivalent value. Then the thesis analyzes the application areas of bona fide acquisition of rights associated with the negotiable instruments. Different from most scholars, the author considers that we should extend the application areas of bona fide acquisition of rights associated with the negotiable instruments. In his opinion, persons with no competence, persons with limited competence and the agent should also be regarded as persons who have no right to dispose of negotiable instruments. In addition, this thesis also analyzes whether several situations of that elements are effective in the form but invalid in essence can be applied to bona fide acquisition of rights associated with the negotiable instruments. In the end of this chapter, the thesis analyzes the legal effect of bona fide acquisition of rights associated with the negotiable instruments. It is highlighted that bona fide transferee shall be entitled to the original and final rights associated with the negotiable instruments, while the original rights holder should be divested of the rights associated with the negotiable instruments.In Chapter 3, the thesis gives comparison between bona fide acquisition of rights associated with the negotiable instruments and bona fide acquisition of movables. The author analyzes the similarities and differences in the integral design between the two systems. He points out that the differences in the integral design is due to the differences in basic value between civil law and commercial law, for the basic value of civil law is justice, but efficiency in commercial law. Specific to the question of protecting the interests of the bona fide transferee, civil law is relatively conservative, while commercial law is more innovative. Then the thesis discusses the similarities and differences in the specific design between the two systems in details, from transfer to the grantor, from the transferee to value. In the aspect of transfer, there are great differences between the two systems either in the essential requirements or the elements in forms. In the aspect of the grantor, the main differences between the two systems are manifested in the situations when the grantor is a thief or a person who finds other people's lost property. In the system of bona fide acquisition of movables, such persons are excluded from persons who have no disposition right; while in the system of bona fide acquisition of rights associated with the negotiable instruments, such persons can be regarded as persons who have no disposition rights. In the aspect of the transferee, looking from the subjective point, although both of the two systems request the element"good faith", the degree of requirement are different. The system of bona fide acquisition of movables demands that the grantee should have good faith and have no faults, while the system of bona fide acquisition of rights associated with the negotiable instruments demands the grantee have good faith and have no serious faults. Looking from the objective point, the ways of transfer of bearer instruments are the same as the ways of movables. However, for the instrument that is with names recorded , they should only be offered in realistic delivery, but not the delivery in idea. In the aspect of value, the differences between the two systems are manifested in that whether there is value or not and if the value is equivalent will have different influences on them. Whether there is value and whether the value is equivalent are not requested in the system of bona fide acquisition of movables. But that is a statutory element in the system of bona fide acquisition of rights associated with the negotiable instruments.