Right Relief Of The Interested Parties For The Damages Because Of The Bill's Invalidating Judgement

The invalidating judgment is based on the presumption of the bill`s existing state,is the system of the recovery form for the bills.There are possibilities that the interested parties`rights and interests are infringed,and the system of the invalidating judgment will be questioned if the interested parties`rights and interests cannot be relieved.For this,the article is based on the provisions of existing legislation,and review the current legislation of the interested parties`right relief.There are kinds of defects of Chinese laws about the right relief of the interested parties after the bill`s invalidating judgment. To effectively improve the system,the focus of this article are the specific circumstances of the interested parties`entitlement damage and the alternative path for the interested parties to relieve it`s rights and interests.On this basis,the goal is to improve the system of the right relief of the interested parties after the bill`s invalidating judgment.The article will discuss the theme from the following four parts:The first part is the theoretical basis of the invalidating judgment and relevant systems.For the article`s starts,there are the nature of the invalidating judgment,as well as the invalidating judgment`s effectiveness and the limited of the invalidating judgment`s effectiveness.The article thinks that the invalidating judgment should be recognized as forming judgments on it`s nature,and it has the legal validity as the general proceedings`judgments,but it should be limited on the executive power and “the power of removing rights”.It is mainly manifested in two aspects:the first aspect is the limited on the executive power,and it means that the invalidating judgment is just the recovery form for the bills without the power of enforcement;the second aspect is the limited on the “the power of removing rights”,and this paper argues that whether the applicant can prove the anterior holder or the application for the anterior holder is recognized,it is distinguished between the situation that whether “the power of removing rights”effects in the right of recourse on the bill or not.Furthermore,the article also describes the theory of bills`interested parties,Including the different provisions about the interested parties in procedural law and substantive law,and depart from obligee of the bill to carding the scope of the interested parties.the first part is to provide a theoretical tone for the article.The second part is legislation situation and the analysis of the legislation Situation about the system of right relief of the interested parties after the bill`s invalidating judgment.The legislation Situation about the system of the invalidating judgment is mainly about the legislative provisions relating to the invalidatingJudgment system,including the following three aspects:the first aspect is that the people who loss the bill can claim relief in accordance with the public notice procedure;the second aspect is that the act of transfer the bill during the public summon is invalid;the third aspect is that the people with blank bills can apply for the invalidating judgment.Furthermore,this paper will combine with relevant theory to give an overall evaluation of the provisions in Negotiable Instruments Law and Code of Civil Procedure,and think that according to the current legal provisions,there is malfunction on the system of right relief of the interested parties after the bill`s invalidating judgment,which appears in the following aspects:the first aspect is that the deficiencies of the public notice procedure may result in the court`s error identification on the bill`s presence status;the second aspect is the lack of the protection for the bona fide third parties during public summon;the third aspect is the lack of the the system of right relief of the interested parties after the bill`s invalidating judgment.According to the analysis of the current legal provisions,the paper`s aim is to find the reason that the imperfect on the the system of right relief of the interested parties after the bill`s invalidating judgment,and it can be identified as the article`s starting point and breach.The third part`s expansion is based on the abovementioned two portions,for long words,it is mainly about the definition of the situation of the interested parties`rights impaired.According to the way of the analysis,the paper will define the different situation on the bad faith or the goodwill,and the aim is to improve the the system of right relief of the interested parties after the bill`s invalidating judgment.Under the situation that the applicant with bad faith,the relief for the bill`s interested parties is necessary,and the paper think that under the situation of the applicant is not suitable and with the bad faith or does not comply with the applicable prerequisite should be identified as apply the invalidating judgment with bad faith;under the situation that the applicant with goodwill which without the imputability on the law,from the perspective of the bona fide acquisition,it is necessary to relief the people who with goodwill and get the bill,because the invalidating judgment may prevent its rights and interests.The division of situation is the base of the following part which describe the selection of the relief ways.The fourth part is about the selection of the relief ways for the bill`s interested parties.This part is based on the the definition of the situation of the interested parties`rights impaired,and think that it is necessary to adapt different relief ways under the different situation.For the situation under which the applicant with bad faith to apply the invalidating judgment,the article think that the bill`s interested parties can select the relief ways from the following ways:the first way is to sue the revocation of the invalidating judgment and claim for damages for the applicant;the second way is to sue for the damages and claim the rights according to the Tort Liability Law;the third way is to claim the rights for the anterior holder according to the based relationship.For the question of interested parties select the ways to relief the rights under the situation that the applicant with goodwill apply the invalidating judgment,the article think that the path of relief rights is different from the bad faith situation,which mainly show at the limited of the ways.The interested parties can only claim the rights for the anterior holder according to the based relationship or claim the right of recourse for the anterior holder under the special circumstances.