Study On Holder In Due Course In China's "Bill Law"

The system of proper holder is a system established by the common law system of instrument law to promote the circulation of instruments.When it meets the constitutive requirements of the legitimate bearer,the holderundefineds right of claim for payment is not defended by the obligor of the bill.Based on the same legislative purpose,the bill defense cut-off system established by the instrument law of Geneva law system has also adopted the bill defense cut-off system in the legislative model,but China has also absorbed the factors of the legitimate holder system in some common law systems.This paper compares the legitimate bearer system in Anglo-American law system with the bill defense system in our country,the difference in specific key nodes and the different legal effects under different circumstances,in order to provide some thoughts for the perfection of the bill related system in our country.The common points of the two systems are the requirements of the bearer and the ignorance of the defects of the bill rights.The differences mainly focus on the good faith of the holder and the payment of the bill consideration,and the indirect problems of the debtor of the bill related to the legitimate bearer system.In particular,the rights of the proper holder in the endorsement of return and pledge are discussed.In the subjective state of ticket holder,the criterion of harmful meaning is generally accepted,and the standard of simple cognition adopted by our countryundefineds negotiable instrument law is unreasonable.In our country,the concept of goodwill and malice is used in the subjective state of the bearer,which is not logical enough at first,and it is not only reasonable to infer the two states by knowing or not.The concept of goodwill and non-goodwill should be used to further distinguish the informed from the uninformed,that is to say,it can increase the circumference of the legal concept and make the gross negligence and so on to be stipulated,so that the result is more reasonable.The identification of the holderundefineds subjective state is the same as that of the traditional civil law,but the civil law is based on the act time as the node.The system soil is not completely suitable for the situation of counterplea cutting off with the negotiable instrument law,so it is not suitable to use the subjective non-bona fide state of the holder to cut off in time and to independently identify the debtors of different instruments.To establish a system of relative recourse between non-bona fide parties can bring into play the value of negotiable instruments to a greater extent on the basis of not harming the rights and interests of the debtor.The lack of the provisions of consideration and the simplicity of the standard of consideration bring difficulties and disputes to the application of the law.At the same time too strict requirements of consideration also become an obstacle to the circulation of bills.It is a good choice to increase the enumeration of consideration categories and to apply successively the two criteria of consideration,and at the same time to appropriately relax the requirements of necessity for consideration.It is possible to solve the contradiction between the bona fide acquisition and defense of the bill by extending the rights of the holder of non-payment consideration to the paid acquisition of the bill which is not superior to the norm of the previous hand.The right and position of the proper holder should not be treated the same as the general indorsee.Due to the human nature of the defense of the person who has been indorsed back,he can not inherit the right of the holder of the ticket.Because of the ownership of the rights in the hands of the indorser and the humanity of the defense of the person,and the fact that the pledge of the bill is a guarantee rather than a circulation,it should also be restricted by the debtor of the bill against the plea of the pledge endorser.Therefore,after the completion of the above aspects of our countryundefineds bill law,we can construct our own legitimate bearer system,so as to limit the bill defense and the bill holderundefineds rights systematically.