Research On The Relief Of The Loss Of Negotiable Instruments

Negotiable Instruments are totally negotiable securities and negotiable instruments and the right on them are considered as a whole. It is necessary to form negotiable instruments in order to produce negotiable instruments right. It is necessary to submit negotiable instruments in order to exercise negotiable instruments right. It is necessary to return back negotiable instruments in order to fulfill negotiable instruments right. In the process of negotiable instruments circulation, negotiable instruments are lost due to any reason, resulting in any hindrance in exercising negotiable instruments right, so the benefit of the person who loses the negotiable instruments will be infringed. In order to relieve the person who loses the negotiable instruments, the relief system of negotiable instruments loss emerged as the times require, stipulating three kinds of relief measures: loss report and stop-payment, public summons for exhortation and common action, but it is expressed briefly and need being discussed further. There are many matters which have not been made certain in the form of laws or regulations, even there is no single word about applicable subjects who lose negotiable instruments, so that it is very difficult for the subject who loses the negotiable instruments to ensure his own legal rights and interests through relief measures of negotiable instruments loss. The writer noticed the above mentioned problems during studying the negotiable instruments law, so the thesis came into being. In line with the internal logic relationship of the theory of negotiable instruments law, the thesis is composed of five parts: cognizance of negotiable instruments loss, cognizance of relief subject of negotiable instruments loss, stop-payment, public summons for exhortation and common action.Cognizance of negotiable instruments loss is the most basic premise of applicable relief, but there is no stipulation at all in China's Negotiable Instruments Law, only appearing sparsely in some scholars'writings. Taiwanese scholars think the person who loses the negotiable instruments is the holder doesn't cast away the negotiable instruments, but the negotiable instruments gets out of his possession. The writer supports the above opinion and thinks that the legal holder loses the direct possession and indirect possession of the negotiable instruments not out of his own will, this kind of loss of negotiable instruments possession is defined as negotiable instruments loss. In order to cognize a negotiable instruments loss correctly and in time, it is necessary to set up some cognizance standards for negotiable instruments loss. After a study and summary, there are four cognizance standards for negotiable instruments loss: first, the negotiable instruments lost should be a valid negotiable instruments; secondly, the subject of negotiable instruments loss should be the final legal holder; thirdly, the holder should lose the direct and indirect possession of the negotiable instruments; finally, the negotiable instruments loss is not out of the holder's will. In the practice of negotiable instruments, there is still a doubt that the application of a negotiable instruments lost after it is lost and it is known that it is in one person's hands. After an analysis the writer thinks that it should be set as a loss of the negotiable instruments when it is known that the negotiable instruments is in one person's hands in order to protect the third person and prevent the lost negotiable instruments from being acquired by the third person by a fake endorsement through bona fide way.The subject of the lost negotiable instruments is the applicable target of the relief of a lost negotiable instruments, but there is no specific stipulation about the subject of a lost bill in China's Negotiable Instruments Law. In order to solve the application problem of the subject of a loss negotiable instruments, the subject of a loss negotiable instruments is defined as the final legal holder before he loses possession of the negotiable instruments which can be transferred by an endorsement in Stipulations on negotiable instruments Dispute. But the final legal holder is the oblige of the negotiable instruments or includes other subjects of the lost negotiable instruments at the same time, which is not explained in detail. In the practice of negotiable instruments, not only the negotiable instruments oblige loses negotiable instruments, but also the negotiable instruments obligor, the negotiable instruments associated persons and non- negotiable instruments party lose negotiable instruments. The other possessors except the negotiable instruments oblige lose the negotiable instruments and at the same time result in infringing their own rights and interests. If this kind of lost negotiable instruments are not taken as lost negotiable instruments under relief, it is a miss for the legislation. The writer has finished an analysis on the situations of lost negotiable instruments of all kinds of possessors, and defines the subject of lost negotiable instruments as the negotiable instruments oblige, the negotiable instruments obligor, the negotiable instruments associated persons and non- negotiable instruments party who hold the negotiable instruments finally and lose the negotiable instruments out of their own will.Loss report and stop-payment refers to the remedial measure that the person who loses the negotiable instruments notifies the payer of the loss of the negotiable instruments, and the payer who gets the notification decides to stop payment to avoid the payment of the negotiable instruments from being acquired by others. The absolutely lost negotiable instruments cannot be held by others, so the loss of this kind of negotiable instruments needs no loss report and stop-payment and other relief measures can be resorted to directly. A negotiable instruments is transferred by an endorsement, so it is possible to forge an endorsement only on relatively lost negotiable instruments. Loss report and stop-payment offers buffer time for the person who loses the negotiable instruments, so that the person could spend enough time on other relief measures. During the process of thesis exposition, as a special case of loss report and stop-payment of negotiable instruments, the writer discusses undue bills whose possession is lost due to unwillingness by the holder, negotiable instruments expiring payment term and negotiable instruments without the record of"payment received"and analyzes the application of loss report and stop-payment.Public summons for exhortation, a relief measure for lost negotiable instruments, the court with jurisdiction urges the associated persons who are not sure about advantages and disadvantages to declare the rights within a certain term in line with the party's application by a public notification. If not declare overdue, the negotiable instruments right will be lost. A negotiable instruments is transferred by an endorsement. The holder proves that he is the legal holder by endorsement. When the negotiable instruments which cannot be transferred by endorsement are lost, the person who has no right to own the negotiable instruments should not get the payment by a fake endorsement or it is acquired by the bona fide third person by a fake endorsement, resulting in a loss of rights and interests of the person who loses the negotiable instruments. In line with the different ways to record payee, the negotiable instruments can be classified into special negotiable instruments, demonstrative negotiable instruments and bearer negotiable instruments. In China, only special negotiable instruments and demonstrative negotiable instruments are accepted, but not bearer negotiable instruments. Bearer negotiable instruments without payee are invalid negotiable instruments, no need to get relief. The application scope for an urge by public notification is special negotiable instruments and demonstrative negotiable instruments which can be transferred by endorsement. As a special case, the thesis discusses the applicable problems of the urge of public notification of loss of non-transferable negotiable instruments, negotiable instruments against payment by acceptance and negotiable instruments expiring payment term and analyzes other fuzzy disputes.Common action refers to the civil action prosecuted by the person who loses the negotiable instruments to the people's court, requesting the court to order the defendant to pay him payment or reissue the negotiable instruments. The theoretical basis for a common action is right presumption theory, that is, to offer adequate guarantee to the drawer, the acceptor or the payee, and ask them to pay the negotiable instruments payment, if they refuse, an action can be brought to the court to ask them to reissue the negotiable instruments or pay the payment. The common action is similar to other relief measures and has its own application scope, but there is no single word about it in China's negotiable instruments. The writer holds the idea that the person who loses the negotiable instruments is sure about the lost negotiable instruments not out of his own will have been lost absolutely, and the negotiable instruments cannot be owned by others, so the person can get relief by a common action. Certainly if a negotiable instruments possession is lost out of one's own will, it is a behavior of casting away the negotiable instruments right, which cannot be taken as a loss of negotiable instruments and is not applicable for relief of lost negotiable instruments. The person who loses the negotiable instruments is sure about relatively lost negotiable instruments cannot be owned by bona fide holder or negotiable instruments payment is needed urgently, a common action can be chosen. Loss report and stop-payment, a temporary relief measure, aims at offering buffer time for the person who loses the negotiable instruments, which cannot restore negotiable instruments right. The urge of public notification can avoid the third person from getting the negotiable instruments by bona fide way. Although the negotiable instruments right can be restored, it is time consuming. If the person who loses the negotiable instruments is sure about relatively lost negotiable instruments cannot be owned by the third person by bona fide way, additionally, the person who loses the negotiableinstruments needs the negotiable instruments payment urgently, it is difficult toget a relief by an urge of public notification, so better search a relief by acommon action.