The Effectiveness Of The Transfer Of Negotiable Instruments During The Public Summons For Exhortation

After the loss of bills, how to provide relief to the loser, China’s ‘Civil Procedure Law’ adopts the Procedure of Public Summons for Exhortation, the common practice in the Civil Law System. The Procedure of Public Summons which protected the rights of the loser, has played a very important role. But the article of this procedure overprotects the interests of the loser, basically is at the expense of bona fide assignee, especially the second paragraph of article 220 th is. This article stipulates, the behavior of transferring the rights on the bill during the public summons for exhortation is invalid. Although in the past several decades, ‘Civil Procedure Law’ has been revised for several times, but this article is not changed.In the present ‘Civil Procedure Law’ and the new judicial interpretation of ‘Civil Procedure Law’, give definite and detailed explanation to many of the articles about the Procedure of Public Summons, but for this clause is still retained, and the behavior of transferring the rights on the bill during the public summons for exhortation not to be distinguished and defined. This makes the bona fide transferee’s rights cannot be protected effectively during public summons for exhortation, also makes the judicial practice be in trouble when court need to balance rights of the bona fide transferee and the loser.In order to solve this problem, in this paper, according to the actual situation in our country, combined with the specific case and the legislation, referred to the view of domestic and foreign experts and scholars, using the method of comparative analysis and empirical analysis, the validity of the transfer behavior during public summons for exhortation notes will be analyzed and discussed, in order to get a definite conclusion, and put forward the corresponding suggestions. The main contents of this paper can be divided into the following three parts:The first chapter is ‘Inspected the effectiveness of bills transfer during public summons for exhortation’. In this chapter, according to the issues raised in the introduction, combined with the specific case analysis, discusses actual situation presently on this issue in the legislation and judicial, and the academic controversy on this issue.The second chapter is ‘extraterritorial investigated the effectiveness of the transfer of negotiable instruments during public summons for exhortation ’.This chapter mainly discusses the legislation and judicial practice on the relevant problems in the Civil Law System and the Common Law System, and carries on the comparative analysis, pointed out that the national legislation and judicial practice for our reference.The third chapter is ‘necessity analysis and system improvement of the transfer during public summons for exhortation ’. This chapter mainly carries on the analysis from three angles of transaction security, the legal effect and social justice, in order to discuss the necessity of the transfer effectively during public summons, and put forward the advice of perfecting our country’s Public Summons Procedure.