Research On Abstract Principle Of Negotiable Instruments Of China

The author researches on it through three parts: the first part discusses the basic concepts, legal function and value of abstract principle of negotiable instruments. it explains the basic theory including the meaning, jurisprudential foundation and valuable analysis of abstract principle. The author points out that the abstract principle of negotiable instruments is that once a negotiable instrument is signed, the relationship of negotiable instruments gets independent of the basic relationship of negotiable instruments. The aim of abstract principle establishment is especial cater for the need of economic living, It is the result of legislative art, but not only roots in legal logic. Its aim is to promote the negotiability of negotiable instruments smoothly and ensure the economic trade security. The author thinks that the negotiability of negotiable instruments is the most important and at the same time gives attention to the exchange security of negotiable instruments. In an economic sight, abstract principle of negotiable instruments can reduce the trade cost and increase the economic efficiency of the society, which is the value of abstract principle. The author indicates that abstract principle accords with the justice principle. Normally,the relationship of negotiable instruments and its basic relationship are independent of each other,but according to the principle of justice and honesty,there are some exceptions. With applying abstract principle at large, the exceptions must be applied strictly. It is the relativity of abstract principle. Abstract principle is the core and foundation of the negotiable instruments theory, so that formalness and independence have been on it and the system of negotiable instruments law is designed and arranged according to it. The legislation of abstract principle of negotiable instruments is a well known international custom,and is widely accepted as the basic principle of negotiable instruments legislation by almost all the countries and areas over the world.The second part mainly points out realistic foundation,reality and the necessity of establishing abstract principle. It includes the reality of current laws and rules and informal institutional foundation and other limitations of the application of the whole institutional system, including the monopolization of bank, the custom of behavior, the circumstance of credit, infrastructure and so on. The author definitely points out that the establishment of abstract principle is effected not only by institutional factors but also by informal institutional factors, so that it is important that we pay attention to the reality of Chinese society, on which abstract principle is applied. Meantime, it analyses the necessity. The author thinks it is urgent affairs to establishing abstract principle in our legislation of negotiable instruments. The embodiment of necessity is that the need of international intercourse, the need of enhancing exchange of negotiable instruments, the need of enhancing the control of commercial bank risk and improving the operating mechanism of commercial bank and the need of enhancing construction of legal system and improving the defending mechanism of fraud.The third part discusses the different valuable tendency of the provisions of abstract principle in our present legislation of negotiable instruments, and the approach of establishment of abstract principle. There are two tensional tendency in the present legislation. On the one hand, insistence on abstract principle of negotiable instruments is the main dream. The best embodiment is the strict formalness and the meaning on test. The principle of formalness affords the application of abstract principle in practice with advantages and reduces the cost the application. The strict formalism is adopted in the application of our negotiable instruments law. The most performance is that our standard in the application of our negotiable instruments law is stricter than international standard, especially Geneva Convention. But on the other hand, some provisions in our negotiable instruments law and administrative rules conflict with abstract principle. In other words, these provisions reject abstract principle on great degree, so that limit the function of abstract principle. It is urgently to mend. On this basis, this paper indicates the approach of establishing our abstract principle of negotiable instruments. This paper brings forward the idiographic ideas of modification and the suggests of improving negotiable instruments according to the defects of individual provisions and relational administrative regulations. It also indicates that to rebuild abstract principle can not accomplish in an action. The process is the collateral one of forcible alteration and spontaneous evolution. It needs the active cooperation of legislator, judicature, administration and parties of negotiable instruments, especially bank, so that the gradual approach of establishing abstract principle, depending on the good interaction of evolutional variance and artificial one.