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The Effective Elements Analysis Of Bill Endorsement

Posted on:2014-12-31Degree:MasterType:Thesis
Country:ChinaCandidate:C C ZhouFull Text:PDF
GTID:2296330425478750Subject:Civil and commercial law
Abstract/Summary:PDF Full Text Request
The life of instruments is demonstrated through the circulation of instruments, and the circulation is realized by endorsement, so the endorsement system is a very important system and worthy of study, and it is one of the core contents of the Negotiable Instruments Law. The instrument has to be expressed through certain form. The form of instruments is limited by the Negotiable Instruments Law for strict rules. The Negotiable Instruments Law provides the form elements and items strictly for endorsement. Only with these provisions of the law, the endorsement shall have legal effect. The instruments also have abstract character. Endorsement shall be effective after such entry into force of the endorsement, and it separates from the underlying relationship. We cannot advocate the endorsement invalid just because the underlying transaction relationship does not exist or change.In this paper, based on the case Fujian NO.7Construction on Group Co. Limited VS Ye Xufen, combined with the focus of the case and Negotiable Instruments Law related theories, the author trys to analyze the elements of effective endorsement.Except the introduction, the whole text consists of four parts:The first part analyzes the validity of the endorsement without a certain date. In this part, the author discusses the provisions of the Negotiable Instruments Law about the effective elements of the endorsement theoretically. Then according to the relevant provisions of the Negotiable Instruments Law, the author comes to the conclusion that endorsement date is the relatively necessary item and there is no affection to the effectiveness of the endorsement without endorsement date.The second part is the analysis of the influence of the fundamental relations to negotiable instrument endorsement transfer. According to the abstract principle of negotiable instruments, the author comes to the conclusion that after such entry into force of the endorsement, it separates from the underlying relationship. Then the author disputes the Articles10of the Negotiable Instruments Law and thinks that the underlying transaction relationship can’t be used as effective elements of the endorsement. But it can be used as defense to direct parties who exercise their own rights on the bill, the NO.7Co. can’t advocate the endorsement invalid just because that the underlying transaction relationship does not exist. The third part is to analyze the influence that the procedure of public summons for exhortation makes to the effect of contract. First, the author analyzes the problem that whether an instrument endorsed and transfered more than once can apply for the procedure of public summons for exhortation. The author deems that the NO.7Co. isn’t the final holder legally, though the corporation signed and endorsed on the instrument, so it has no right to apply for the procedure of public summons for exhortation. Then the author analyzes the effect of endorsement in the procedure of public summons for exhortation. The transfer of instrument during the period in which the pressing notice is not admitted in China, but the author insists that our legislation should protect the legal instrument rights of good faith assignees on basis of overseas legislations.The fourth part is an evaluation of court decision. The Trial Court and the Appellate Court heard the case on the claims of NO.7Co. in strict accordance with the effective elements of endorsement in law. The judgment is rational and legal because the courts abided by the abstract principle of negotiable instruments. Finally,the author holds that the plaintiff should bring a suit to demand restitution of unjust enrichment, not to advocate the endorsement invalid.
Keywords/Search Tags:Endorsement, the Abstract Principle, the FormattedPrinciple, Effective Elements, the Legal Instrument Rights
PDF Full Text Request
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