Study On Unauthorized Payment In Negotiable Instruments

Negotiable instruments, which reinforces commercial credit and accelerates commodity circulation and speeds capital turnover, is essential to commodity economy. Whether it is for bill of exchange or for promissory note and check, payment is an important tach. When using negotiable instruments, any user including remitter and payee and endorser and endorsee and holder will first consider that whether the negotiable instruments can be changed into cash or deposit. Banks play an important role in negotiable instruments payment. In daily life, much negotiable instruments dissension is related to the payment of banks. The designation of unauthorized payment system influences the circulation efficiency of negotiable instruments. International pact and foreign negotiable instruments law and our country's negotiable instruments law all have provision about unauthorized payment, but they're different. In foreign negotiable instruments law, these provisions are often in one piece of law, but in our country, except for negotiable instruments law, there're many judicatory explanations. Moreover, they have different provision, which lead to confusion. Although the content mostly relates to forgery and alteration and agent without right and so on, material rules are different, especially for payer's risk liability. Our country's provisions about unauthorized payment have much illogicality. Negotiable instrument law prescribes that payer assumes fault liability, which is too light for payer; while judicatory explanations require payer carry out essential examination obligation, which is unique and aggravate payer's burden and make payer bear strict liability. Payer's risk liability is demonstrated and legislation is given out by discussing causation and modality of unauthorized payment in this dissertation. There're three chapters in all.The first chapter is about the definition of unauthorized payment. At first, unauthorized payment is defined as"payer pays a piece of negotiable instruments without commission or when he paying he breaches remitter's original intent or the recordation of the negotiable instrument."This is the premise for grasp and understanding of unauthorized payment. Following this, causation of unauthorized is analyzed. The third part discusses the modality of unauthorized payment, so we have a better and compressive understanding of unauthorized payment. Through the dissertation of the three parts, we have a clear impress about unauthorized payment of negotiable instrument.The second chapter is about legislative comparison of unauthorized payment. This chapter mostly introduces the provision of foreign negotiable instruments law and our country's negotiable instruments, and then their differences are summed up. There're two parts in this chapter. The first is about the provision of foreign law including international pact and United Commercial Code, and the bearing of risk liability is concluded in this part. The second part generalized our country's provision first, and then compares it with foreign provision. Because the provision of law and judicatory explanation isn't consistent, we only have a whole comparison. The primary difference is payer's examination obligation and assuming of risk liability.The third chapter is about legal effect of unauthorized payment. Firstly, possible effect of unauthorized payment on party is analyzed. So the significance of solution of unauthorized payment in negotiable instruments is farther clarified. Afterwards, payer's risk liability on unauthorized negotiable instruments is dissertated. When referring to payer's risk liability, his examination obligation is an inevitable topic which is significant to payer's risk liability. By analyzing of payer's examination obligation, this part point out our law's illogicality. And then, responsibility assuming is analyzed by analysis. On the one hand, when payer has fault, he will inevitably assume liability, as to what is fault, viciousness and fatal fault are its key content, but our judicatory explanation, which regards"can't recognize forged and altered negotiable instruments and identity certificate"as fatal fault about fatal fault is doubtable. On the other hand, I analyze risk liability assuming under different condition including forgery and alteration and agent without right and refusal of payment.In a word, our law ought to be unified at first. As to risk liability assuming, we could use foreign legislation for reference that we require payer assume risk liability without anyone else's fault.