Research On The Negotiable Instrument Counterplea

Negotiable Instrument Counterplea system is an exceptional instrument law system. Instrument law for the protection of the interests of the debtor, bills to give the debtor the right to defense, notes that the statutory grounds for the adoption of the debtor, holders of the notes on a defense request to meet the obligation to refuse to fulfill the purpose of instrument. Simultaneously instrument law provides for the right to limit defense system.Cut off a defense system is aimed at preventing abuse of power, notes the debtor in order to safeguard the security of transactions to protect the flow of bills.This article is divided into four parts of the discussion with the voucher system, the relevant legal issues.The first part of the basic concept introduced the negotiable instrument counterplea, negotiable instrument counterplea is the reason the debtor in accordance with certain acts against the bearer request. Defense and civil law and then the difference between paper summarized the characteristics and significance of defense. Secondly, from a legal point of view of the role of defense bills, that is the right instrument to prevent abuse and to promote bills in circulation. Finally the paper discusses the two major functions of the defense function and negative functions of the reduction. Function to reduce the debtor are notes to the defense of reason must refuse bills in full accordance with the amount determined by the scope of performance of an obligation, make it happen in the quantitative change. Negative function of the debtor are notes to the defense must defend the right to subject the exercise of negation the bearer the right to enjoy the paper, although over the enjoyment or the right notes but does not have at this time, in other words, notes on the debtor fundamentally with the holders of their paper does not exist between the rights and obligations of the relationship that does not exist at the rights and obligations of both parties on the scope of the changes in the volume of happened.The second part is the introduction of instrument classification of negotiable instruments counterplea, I first of all, the point of view of comparative law from the start with the traditional instrument introduce a defense system, two types of classification of objects to draw the defense in substantiveand the defense in pure procedural law. That is, regardless of the defense complex are in good faith or malicious bearer, and regardless of bearer instrument, and because of the person and whether the requested bills are giving a direct party, bearer can be any defense against was called the objective, absolute defense. Because of the bill request that person can only be called subjective , relative counterargument to the counterargument that specially appointed the bearer resists being called defense in pure procedural law. Second, the defense introduced the classification theory of bills of the new development, including Japan and China's mainland on both sides of the new opinion. Traditional paper based on the classification of most of the defense is based on the different defenses, whether the right defense is limited and so on.The author from the substantive and procedural defenses to the instrument for further classification to refuse to fulfill their obligations, such as the defense most of the provisions of the substantive law of defenses directly, known as the significance of the substantive law on the defense, deny the right to put the defense in the proceedings, such as the instrument through the provision of evidence to reach a plea referred to as simply the meaning of procedural law on the defense. Drawn between two types of defenses that there was a clear distinction between: (1) paper produced according to different defenses, (2) notes the effect of different defenses happened, (3) restrictions on the rights of different, (4) legislation purpose is different.The third part of the author discusses four aspects of the restriction of negotiable instrument counterplea. First of all, the paper outlines the restriction of negotiable instruments counterplea. Instrument to defend the restrictions, also known as the instrument to cut off defense, refers to "the debtor and the drawer or paper bearer between the first hand-defense reasons, can not be used against the rights of holders of notes. Whose legal principle basis is the bill nothing reason nature. Secondly, the restriction of negotiable instruments counterplea of the legislative restrictions on comparative example. At the international level, the restrictions on methods of defense bills have been restrictions on the existence of positive and negative restrictions on the legislative and the two cases. Our country has carried on the model of Geneva law, the negative list of reasons does not allow two defense. Thirdly, the defense notes the contents of the restrictions. (1) The instrument should be limited to our country to defend the content, only the appearance of written instruments are recorded in non-defense happened. (2) limit the right to defend agent. Fourth, restriction of negotiable instrument counterplea exception to the restrictions. China's Law of Bills defense bills provided for exceptions, including restrictions on the price of non-defense defense and malicious. Reflected on the price of non-defense for our country, " Law of Bills " in article 10, paragraph 2, states: "The instrument made, we must pay for the price of payment instruments should be approved by both parties relative to the cost. Article 11, paragraph 1, provides: Article 11, paragraph 1, provides: due to taxes, inheritance, gift, such as non-price instruments to bearer, it may not be superior to the rights of the rights of the previous hand. Malicious defense embodied in our country, " Law of Bills " in article 12, paragraph 1, before hand there is to fraud, theft or coercion, such as obtaining the first case of instruments, instruments made out of malice, shall enjoy the right notes.The fouth part I put forward a negotiable instrument counterplea system following proposals: Firstly, the subject of the notes taken by a defense with the dispersion concentration of the provisions of this combination of notes in circulation and contribute to practical use of justice. Secondly, the "Law of Bills" section 10 to read: "The issue of notes, to acquire and transfer, should be guided by the principle of good faith", delete "is the real deal and the relationship between claims and liabilities" of such words. This will not only reflect the behavior of China's Law of Bills of instruments necessary restrictions, not with the paper due to the principle of non-conflict. As to paragraph 2, must be paid on the price of the relevant provisions of Article 11 and vulnerable because of the tax, inheritance, gift note can be obtained free of charge provided misleading. Content suggested that the inclusion of article 11, on "because of the tax, inheritance, gift note can be obtained free of charge in accordance with the law and not subject to restrictions on payment of the price" before. This instrument can ensure the consistency and logical rigor, but also easy to understand. Finally, the " Law of Bills " of article 13, paragraph 2 would be deleted.