Unauthorized Agency Of Negotiable Instrument And Its Validity

The agency of negotiable instruments is a very important system，which isderived from civil agency, and they have many similarities, but the behavior ofnegotiable instruments is quite different from the general civil behavior. In order torealize two tasks--circulation and transaction security, the negotiable instrument lawsof various countries especially give the negotiable instruments such features asbehavior without cause, typing in this paper, the meaning and independentcharacteristic, so the negotiable instruments agency rules has its own particularity.But in China the negotiable instruments agency legislation is not perfect, the fifthclause of negotiable instruments law can not solve the endless disputes and problemsemerging in real economic life.The negotiable instruments agency has strong economic value and practicalsignificance. The negotiable instruments law although has the provisions of thenegotiable instruments agency, but the contents of it are very principled and the spaceis too large and even some empty seriously threatening to the survival of negotiableinstruments agency. Therefore in the aspect of legislation, we are facing with a deepthinking that is how to better design the rules of negotiable instrument agency.Negotiable instruments agency is an important part of the legal system of negotiableinstruments. Negotiable instruments agency belongs to a special form of civil agency,but it is adjusted by negotiable instruments law, therefore, it has its own peculiarcharacteristics. So, the study on the negotiable instruments agency problem has verystrong theoretical significance.Since1995our country promulgated law of negotiable instruments, it hasensured the payment of negotiable instruments and played an active role in thecirculation of negotiable instruments. Now, the agent behavior is more and morefrequent, the act of unauthorized agency system is gradually being paid moreattention, but owing to the effect of negotiable instruments law in our country is toolate, to a large extent the provisions of unauthorized agency system of Geneva lawsystem countries haven been borrowed. Therefore the unauthorized agency system has varied degrees of defects from perspective of legislative or negotiable instrumentpractice. For example, the right of agency of unauthorized agency, negotiableinstrument law of our country has not made clear; and the unauthorized agency iswhether or not to allow himself the ratification of unauthorized agency, the law ofnegotiable instruments does not make a clear regulation; and the efficiency ofbehavior of unauthorized agency ultra vires need to clarify.For the foregoing reasons, I think that it is necessary to conduct a comprehensiveanalysis and discussion on the unauthorized agency system of negotiable instrumentsbehavior in order to enable them to better applied to the field of daily businessactivities, and to provide some of the my opinion to our future modification andperfection of negotiable instruments law, making a little contributions to the judiciallypractical problems in the field of our country negotiable instruments agency system.This paper makes a comprehensive and in-depth analysis and presentation aboutunauthorized agency of negotiable instruments based on the system of agency ofnegotiable instruments and behavior of negotiable instruments mainly adopting themethod of comparative analysis and text research, comparing with the domestic andforeign legislation practice. The paper also introduces the concept of unauthorizedagency and the elements of behavior of unauthorized agency, and the lack ofsubstance--agency of negotiable instruments agency makes it unauthorized agency.The related concept of the unauthorized agency lack of agent right--the behavior ofnegotiable instrument act will also be introduced in order to clarify the relationshipbetween the two.When we determine whether the conduct constitutes unauthorized agency, themost important is the agent in addition to the formal requirements of the negotiableinstruments agency. I discuss the proxy from three angles respectively, which aresubstantial agent, agent between the agent and proxy and agent between the agent andrelative person. The right of agency can not display from the instrument, butnegotiable instruments focus on the forms so the effect of negotiable instrumentsbeing decided by the reasons beyond the negotiable instruments is for whatconsiderations. I think it is regulated to protect the right of proxy and the safety oftransaction. The burden of proof of the right of agency between agent and proxy is given to the agent, which violates the principle “who claim, who quote” of the civillaw. Between the agent and the transaction relative person, for the protection of arelative of the bona fide transactions, he can select the form to be unauthorizedagency or apparent agency based on debt paying ability of agent and proxy. Now thetheory of negotiable instruments law about validity of ultra vires agency has a lot ofsayings. In the determination of the ultra vires agency responsibility, the relationshipbetween internal and external is to distinguish responsibility of agent and proxy. Iacknowledge the validity of unauthorized agency by ratification, and discuss thereasons. The negotiable instruments agency is authorized agency since it has beenratified and I hope to design a reasonable mode of ratification of unauthorized agency.The ratification of unauthorized agency cannot be revocable. From the perspective ofestoppel principle and protecting the safety of transactions I describe the reason whyratification shall not be cancelled.