On The Invalidating Judgment

The invalidating judgment separates the rights from the entity of the negotiableinstrument so that the person who has lost the negotiable instrument can exercise the rightswithout presenting the negotiable instrument, but presenting the judgment. Usually theinvalidating judgment helps the person who has lost the negotiable instrument, but sometimesit is used by the lawbreakers who don’t lose the negotiable instrument but to counterfeit thelast holder. The lawbreakers’ behavior applying for the invalidating judgment maliciously notonly infringes the legitimate rights and interests of the lawful holder, damages the dignity ofthe law, but also influences the transaction security. In judicial practice, the lawful holderswho file a lawsuit to safeguard their legitimate rights and interests could get absolute differentconsequences, mainly because they have adopted different litigation strategies. Whether thelawful holders’ claims could be supported by the court mainly refers to two issues—the legaleffect of the invalidating judgment and the revocation of it. But till now China’s currentrelevant laws and regulations do not provide clear answers for the two issues, and thetheoretical cycle and the practice cycle also hold different opinion and practices. The unclearregulations and the uncertain legal remedy make it difficult to effectively protect the lawfulholder’s legitimate rights and interests. Therefore, to study the invalidating judgment seemsnecessary and urgent.Focusing on the right relief of the lawful holder’ right, this thesis intends to extract therelevant issues from a large number of judicial precedents, sort out the logic thinking fromcomplex ideas and comprehensively use survey method, document research method andcomparative studies to discuss the issues such as the property, the legal effect, and therevocation of the invalidating judgment, in order to find out the best way for the lawful holderto defend their legitimate rights and interests, meanwhile expecting this thesis will help withthe improvement of the invalidating judgment system and the protection of the legal holder’right in the practice. This thesis can be divided into three parts apart from the introduction andconclusion. The first part gives the overview of the invalidating judgment. Based on the concept ofthe invalidating judgment, it first introduces the application condition of the invalidatingjudgment, which will lead to the baleful application of the invalidating judgment below.Secondly it dissects the public summons procedure, the process of giving the invalidatingjudgment, to extract the features of the invalidating judgment, also lay the foundation for thefollowing analysis of the property, the legal effect, and the revocation of the invalidatingjudgment.The second part mainly tells about the property and the legal effect of the invalidatingjudgment. Research on the legal effect of the invalidating judgment is the basis and the key tostudy how to effectively protect the lawful holder. In the first, this part would analyze theproperty of the invalidating judgment, which determines its legal effect, and then parse thespecies and the content of the legal effect of the invalidating judgment.The third part tells about the revocation of the invalidating judgment. It first studies thebaleful application of the invalidating judgment in reality to introduce the realisticsignificance of the revocation of the invalidating judgment by comparing and analyzing theprobable litigation strategies that the lawful holders might choose in judicial practice. Then itfinds the legal basis for the revocation of the invalidating judgment, through interpreting the“Civil Procedure Law” article233, and achieves the conclusion that the revocation conformsto the tendency of international legislation system by inspecting the present status ofextraterritorial legislation. And then it explains the procedure that the revocation of theinvalidating judgment should apply to and the requirements it needs to meet by studying therelevant legal provisions. In the end, this part analyzes the legal effect of the revocation of theinvalidating judgment.