Jurisprudential Contemplation And Systematical Consummtions Of The Lost Negotiable Instrument Remedial System

The term 'loss of the negotiable instruments' refers to their holder's separation from the legal possession of the negotiable instruments which is subject to the protection of the Negotiable Instruments Law of the People's Republic of China, herein not only confining to its direct possession, against the holder's original intention and will. The Lost Negotiable Instrument Remedial System is a system aims to protect the legitimate rights of the negotiable instrument's holders when they claim loss. In the use of the system, Civil Law countries nullify the negotiable instrument by the means of public summons, while Common Law countries tend to exercise the rights by lawsuits. In China, before the enforcement of the Negotiable Instrument Law, the remedies for loss of the negotiable instruments are 'payment suspension at loss notification' system written in the Banking Clearing Ordinance and the 'Public summons' procedure regulated in the Civil Procedure Law; the method of lawsuits is only an added-up remedy after the enforcement of the Negotiable Instrument Law. Though there are various ways of remedies for original owners of lost negotiable instruments in China, it still fails to live up fully to the basic value of the Lost Negotiable Instrument Remedial System, that is, protection of legitimate rights of negotiable instruments for their owners who happen to lose them.Payment Suspension at Loss System is a private remedial method, while the Proclamation and Announcement is public remedial system with a special procedure, which enjoys a complement relationship with the Payment Suspension at Loss System; lawsuit is a procedure that cannot arouse direction economic benefits at direct payment, but it renders the owners of the lost negotiable instruments the greatest remedial efficiency of the remedial methods.The consummate Payment Suspension at Loss System still generally adopts the opening legitimated conventions, reserving Payment Suspension at Loss System, Proclamation and Announcement system and Litigation System as three remedial types. General laws, judicatory explanations and administrative laws and regulations no longer serve as the sources of laws applicable to the Payment Suspension at Loss System. In the Payment Suspension at Loss System, the payer or the representative payer is entitled the right to demand guarantees from the loser of the negotiable instrument at its application. Payment should be made at the time of guarantees unless they are not made up to the requirements. When the guarantees are not given properly, the payer or the representative payer is bound to deny the application. The value of the guarantees should be enough to offset the loss suffered by other obligees when they claim their rights. In the Proclamation and Announcement system, if the annulment is granted at application, the loser of the negotiable instrument can claim the sum recorded in the annulment from the payer or the representative payer. If the payment is denied by the payer or the representative payer, the applicant cannot apply for peremptory enforcement according to the annulment, but can lodge a common complaint with the annulment. The Litigation system comprises the litigations for return of the negotiable instrument and the litigations for the refund of the payment.