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On The Paper - Free Sex

Posted on:2004-08-04Degree:MasterType:Thesis
Country:ChinaCandidate:C F ChenFull Text:PDF
GTID:2206360095456290Subject:Law
Abstract/Summary:PDF Full Text Request
Instruments, as typical securities, have several important economic functions in modem market economy, which can't take effect without their negotiation. In fact, negotiation is the nature of instruments and the root of all the instrumental systems. The abstract of instruments is one of the most important systems that promote negotiation. That is not exaggerated that the abstract of instruments is the objective basis of the establishment of instrumental systems, the indispensable safeguard for carrying out instrumental systems and the life of instrument law.This thesis is to analyze the definition, effect and applying conditions of the abstract of instruments and its impact on the fundamental relationship to review the defections existing in China's present legislation concerning instruments. This thesis is composed of four parts as follows:Part I focuses on the connotation of the abstract of instruments from the aspects of the abstract of the act on instruments and the abstract of legal relations concerning instruments. And then the author compares the abstract of instruments with other similar concepts, puts forward the concept of interior abstract and exterior abstract, and points out the features of interior abstract.Part n analyses the effect of the abstract of instruments. According to the theory of instrument law, the abstract of instrument embodies its effect centrally in the inter-separate relationship between the fundamental relationship of instrument and the legal relationship of instrument, that is, the legal relationship is independent of the fundamental relationship and won't produce, change, or eliminate its restriction on the parties whether the fundamental relationship is existent or legal or not, while the production, changing and elimination of rights and duties depends on the act on instruments and other statuary facts. Besides, the author advocates that the abstract of instrument will have such effects on the direct parties in the legal relationship of instruments as the conversion of onus probandi, and that the creditors' right in legal relationship will influence the creditors' right in fundamental relationship.Part III focuses on the exceptions of the abstract of instruments. The author analyses the exceptions of the abstract of instruments and then discusses its onusprobandi. The abstract of instruments is one fundamental principle of instrument law, but not an absolute one, that is, in certain circumstances, the debtors still can plead against the holders by pointing out the defections existing in the fundamental relationship and other facts. Because of the effect of the abstract, the holder can obtain his right as long as the form of the instruments meet the statuary requirements without the burden of convincing the legality of his acquisition of this instrument, therefore, if the debtor is to plead against the holder, the debtor should bear the burden of proof.Part IV focuses on the review of China's present legislation concerning instruments. The author introduces the present status of China's present legislation concerning instruments and has a review of its defections. From various regulations and law concerning instruments, it can be inferred that China admits the abstract of instruments, however, some provisions in instrument law put itself into the situation of self-contradiction. Therefore, how to comprehend and apply these provisions and how to perfect them in future legislation are impending issues to be solved theoretically.
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