Analyzing The Issue About The Overdue Endorsement Of Instrument System

Instrument as a negotiable bond has been used extensively at present social trading activities. For Instrument speaking, ensure the liquidity is to ensure its life. The highest principle for the instrument in the law is keeping the instrument could be circulated more easily. All systems in law of negotiable instrument, are to apply the criterion for the first starting point. Most of the instruments transfer by endorsement way. The transfer of rights on the Instrument is more convenient and flexible than transfer general property rights. Instrument’s negotiation will achieve what level all depends on whether the instrument endorsement system perfect or not. As a result, endorsement system is particularly important in the whole law of negotiable instrument. As one kind of endorsement, overdue endorsement often appear in the judicial practice. About the legislation and system settings of overdue endorsement is a difficult point in the theory of negotiable instruments law. Scholars have many opinions and debate a lot. The understanding of instrument in practice is not clear. The legislation of each country are not all the same. As legislation about overdue endorsement in our country is different from other countries. Even though the Chinese law set up much more clearly, those ordinances still own contradictions defects exist. The lack of scientific and reasonable, the legislation needs to be further refined and improved. Therefore it is necessary to having a deep discussion of the overdue endorsement theory, which is of great significance to both the legislative and judicial practice, which has an important role in promoting Chinese social and economic development. This paper analysis several issues about the instrument system, according to the theory of negotiable instruments law and practice. Then combines with other countries’legislation practice of instrument to fully realized and clearly know the period of overdue endorsement. To make our overdue endorsement of instrument system more perfect, we shoud put forward some systems which are reasonable and with the situation of our country. There are five parts of this paper. It begins with some basic notions of instrument theory about overdue endorsement to show its importance, and then compareds the legislation in China of overdue endorsement with other countries’to talk about the pros and cons of this system. Lately it will be analyze the rights and obligations between the parties. The purpose of this paper is programming to achievement of our legislation.Part one introduces some theory about overdue endorsement, compares it with general endorsement and introduces some general concept about it. From concept of negotiable endorsement, the elaboration of the legal effect to show overdue endorsement is a special negotiable endorsement, at the same time states particularity between them. Part two talks about some legislation about overdue endorsement of instrument from other countries. By the foreign legislation introduces the Anglo-American law is based on the standard of "due date" and Geneva unified instrument law is based on the standard of after doing withhold payment certificate or after the date of doing withhold payment certificate. At the same time, analyses effect of overdue endorsement which seted by the two law systems and analyses their respective strengths and weaknesses. The third part talks about the overview of legislation for our overdue endorsement system. From that, we can see that our demarcation of overdue endorsement is reasonable and the effect is uncertain. We have not only the demarcation of being refused to accept it or paid it, which is similar to the two law systems, but also the demarcation of more than prompt payment term. The fourth part shows the interpretation of overdue endorsement, firstly, by introducing the superiority and characteristics of usually creditor’s rights transfer effect show the difference between creditor’s rights transfer effect on civil law. Then analyses the rights and responsibilities between transferor transferor and other parties on the instrument. Finally, puts forward the benefits return the right of claim system and good faith acquisition system to apply to the issue of overdue endorsement to bring about benefit balance between all parties. The last part is to solve the problem of our overdue endorsement system, which showed in Article36. The Article36has many problems in legislation that it can’t achieve purpose of reducing disputes and promoting circulation. It is unreasonable that the Article36has prohibitions and lets transferor bear liability for the instrument. The article is of self-contradiction. So the paper suggests the legislation follow the maximum effectiveness and trade swift principle, by using for reference the international experience. Finally, it is recommended that the Article36be amended as follows:If a draft was refused acceptance or payment has been refused or was beyond payment term, the negotiable endorsement has only the effect as ordinary creditor’s rights transfer.