Research On The Bill Deraignment System

In order to promote development of the commodity economy, the humanity has designed the exquisite bill system. Compared with the ordinary creditor's rights transfer, the negotiable instruments law, in order to accelerate the bill circulation, puts particular emphasis on protection of the bill creditor's benefits. Simultaneously, it also limits deraignment rights of the bill debtor. But if nobody wants to be the bill debtor, there are also no the bill creditor's rights; the bill system will lose its existence value. Therefore, research on the system of bill deraignment has the extremely important theory and the practical significance, which can protect the bill debtor's lawful rights, maintain the security and the order of the bill circulation, and then accelerate the bill circulation.In this paper, the first chapter beginning with the bill concept introduces the bill characteristic, and through comparison the bill deraignment with the deraignment in the civil law, induces the characteristic of the bill deraignment. Then the author expounds the theory basis of the bill deraignment and pointes out that the theory basis of the bill deraignment lies in the prevention abusiveness of bill rights and the promotion circulation of bill, and the bill deraignment regarding to the bill right has the denial and the reduction function.The second chapter introduces traditional classified methods and classified methods used by other scholars and myself attempt. Through comparison the traditional classified methods with others, the author thinks that the traditional classified methods reflects quite accurately the characteristic of the bill deraignment, and should be persisted. But any classified method can't be only and comprehensive, other classified methods also have reasonable points.The most major characteristic of the bill deraignment is restricted. The third chapter analyzes the theory basis of the bill deraignment restriction system and points out that the objective of the bill deraignment restriction system, as part of the bill system, is also to promote circulation of the bill. Its theory basis lies in the independent and noncausal nature of the bill behavior. Through comparison with overseas legal regulations, the author thinks that our country legislation pattern of the bill deraignment restriction system should belong to the negative legislation pattern.The restriction to the bill deraignment refers to the restriction to bill debtors, but this kind of restriction is not absolute. In the third chapter, the author has pointed out two excepting situations: the deraignment without consideration and the deraignment with malice.When the bearer is granted the bill from the remote holder who has no right to dispose it, the question of bona gestura for the bill right must be involved. The negotiable instruments law, in order to maintain the security of the bill transaction, has chosen to protect the goodwill bearer's bill rights, and sacrifice the antecedent bearer's bill rights. The author has analyzed and discussed constitutive requirements of the goodwill bearer and the legal effect in the third chapter.In the last part of the third chapter, the author applicating negotiable instruments law theory and affiliating work reality analyzes the allocation of burden of proof about the bill deraignment in bill proceedings.In above elaboration foundation, unified our country legislation of "Negotiable instruments law" and the judicial practice, the author proposed several suggestions to consummate our country bill deraignment system on the reference of overseas advanced legal regulation: 1, Reduce the stipulation of negative deraignment; 2, Cancel the deraignment with consideration; 3, Affirm the ratification system; 4, Disaffirm explicitly apparent agency in the act on commercial paper.