Research On Several Legal Problems Of The Forgery Of Negotiable Instrument

Negotiable instruments takes one kind of completely negotiable securities, is the currency which actually circulates between the merchant, itself represents certain property value. Therefore, when it produces, becomes the object which the unlawful element covets, forgery of instruments, alteration of instruments sometimes occurs. With the rapid development of market economy, the more frequent the use of negotiable instruments with a wide range, on the forgery of instruments cases have continued to increase. Normal instruments of the legal relationship between the parties have been on the more complex and forgery of instruments so that the occurrence of negotiable instruments relations more complicated. If we can not effectively adjust those with forgery of negotiable instruments related to the legal relations and safeguarding the bills legitimate rights and interests of the parties, it will hamper the security of the transactions and the flow of the negotiable instruments, so as not to give full play to the function of instruments. In order to guarantee the negotiation of the negotiable instruments that must be resolved are two issues, namely, the effectiveness of the forged negotiable instruments and how to allocate the lose caused by the forged paper between the parties in the payment system. Therefore, this article is revolving these two subject matters, is divided three parts, and has conducted the deep research.The first part of content is the legal efficacy on the forgery of the negotiable instruments. In this part, I use comparative analysis of methods, the comparison of the civil law and common law forgery of instruments on the different legal provisions, has analyzed this question. Although the acts involving negotiable instruments including the issue, endorsement, guaranty, acceptance, payment, but in real life, the guaranty forgery and the acceptance forged rarely happens, and no payment forgery case. Therefore, this paper developed with the issue forgery and the endorsement forgery. Has in the forgery of instruments situation, there are five parties, the forger, the forgery relatively party, the holder, the real signature, and the payer. Therefore, in the issue forgery cases, the author has analyzed the issue forgery separately to each party. In the endorsement forgery cases, the author studies on two major issues. The endorsement forgery of signatures on other real effects, and the endorsement forgery impact on the continuity of the endorsement. By the study, the author finds that in the issue forgery cases, the provisions of the civil law and common law provisions get an agreement. However, in the endorsement forgery cases, forged on the endorsement would not affect the endorsement of continuity, the existence of significant differences between the Two Schools. That the provisions of the civil law, the endorsement forgery does not affect the continuity of endorsement, however, common law, the endorsement forgery affects the continuity of endorsement because of forged signatures invalid, or is blank, interrupting the chain of endorsement.The second part of content is the legal liability of the forgery of the negotiable instruments. According to the basic tenets of the law, the forger should bear the liability of the forgery of the negotiable instruments, in fact is such many country legal requirements. However, when the forgery of instruments was found, forger has fled, leaving nothing to find. Even if forger can be found, forger may have defrauded money will be spent, and their inability to repay. So who should bear the legal liability of the forgery of instruments? Which participants should bear the loss? In this regard, there are some differences between the civil law school and the common law school. The author of the first study on the issue forgery liability in the distribution of general principle, that is, if the payer for the payment by the payer does not take appropriate legal responsibility for payment if the payer instruments before payment is found to be forged, and refused to pay, by the forger of the subsequent party liability, because the subsequent party should direct their transactions prior parties responsible for the authenticity. Of course, the issue forgery liability in the distribution, there are still some exceptions. In the endorsement forgery circumstances, the civil law school and the common law school liability commitment on the issue vary widely. The civil law school protection transactions from the point of view of security, the protection of the interests of the holder, therefore, good-will, no significant fault holder, if the payer of payment, and the payer is good-will and no significant fault, the loss should be the forgery relatively party bear the ultimate responsibility for risk forgery relatively party commitment. If the holder does not receive payment, the right to the real signature other recourse, until the drawer, and forgery relatively party lost the possession of his instrument, the instrument lost for the exercise of the rights of the foundation, resulting from the risk responsibility forgery relatively party commitment. However, the protection of common law forgery relatively party from the point of view that forged the signature invalid, but the subsequent party recourse to the prior parties, but received directly from the paper forger who have no recourse to the prior parties . Therefore, in the common law countries, the risk responsibility of the endorsement forgery should be bared by the direct assignee from the forger.The third part of content is the legal provisions of China on the forgery of instruments. Firstly, the author inspecting the existing Chinese laws concerning the forgery of instruments effectiveness of the relevant provisions of the law. Discussing from five aspect: the effectiveness on the forgery relatively party; the effectiveness on the forger; the effectiveness on the real signature; the effectiveness on the holder; the effectiveness of the payer; were also. Secondly, the author inspected the existing Chinese laws on the legal responsibility of the forgery of instruments the provisions of the rules. The Chinese laws did not issue specific requirements only through the relevant legal provisions derived. However, the "Law of the People's Republic of China on Negotiable Instruments" and the relevant laws and regulations, judicial interpretations conflict between the standard is not consistent, especially with regard to the review of obligations payer is the real form of review or obligation to review obligations in a serious conflict, resulting in the application of the law confusion, there is a need to be unified. In view of this, the author further analysis the inadequacy of the provisions of the Chinese legal on the forgery of instruments and made a perfect view that the transaction from the protection of security and the promotion of instruments in circulation, the design of forgery of instruments liability rules. Some proposed to adhere to the proposals: First, to protect the bearer of good-will; Second, we must protect the good-will payer; Third, we must clearly stipulates that the insurance instruments do not assume responsibility; Forth, to adopt the comparative negligence rule so as to raise the parties' incentive to prevent forgery of instruments; Fifth, to let the party who could use the least cost to prevent or spread the risk to take the risks responsibility.