Because of the publicity notes with no obstacles - on China's "Law of Negotiable Instruments," Analysis of the relevant provisions of the

Summary: The bill is a negotiable securities, negotiable instruments core function is the most basic functions, in order to ensure the liquidity of notes, bills of non-sexual theory came into being because of the non-paper behavior is the essential attribute of the Notes. Notes is not absolutely non-sexual, China uses a relatively free of sexual theory. but our legislation does not explicitly note the provisions of the principle of non-sexual note, and have seriously weakened the relevant provisions of suspected non-sexual. In order to ensure the bill circulation to meet the needs of economic development, China <<Law of Negotiable Instruments>> should be clearly defined in the legislation because of the principle of non-paper to non-sexual basis of relativity as an exception, the provisions of the defect changes accordingly, changes fuzzy and uncertain state.


Keywords:: non-sexual / liquid / Notes behavior / relative

First, note the essential attribute of
(A note is non-sexual behavior of the essential properties of paper as the objective needs of economic development and changes, notes in the modern economic life, playing an increasingly important role. According to the characteristics of bills, notes, a negotiable securities, currency is the energy source of the Notes, the modern instruments lost circulation, will lose vitality. distribution function is the most basic function of the core instruments, the modern instrument system is built under the premise of notes in circulation, notes and other features to be realized , we must ensure that its good liquidity. The reason why you can quickly flow of notes, bills of non-sexual is the key protection. Therefore, to ensure the free flow of notes, most of the provisions of the Negotiable Instruments Law Bills States acts without cause of no theoretical discussion of sexual Negotiable Instruments Law has also been an important issue, notes that non-sexual behavior of the essential attribute of the Notes.

The substance of non-sexual relationship is the basis of notes separated from the legal relationship with the paper. As long as a ticket in the form of records with the statutory conditions, even if the relationship between the facts and reasons, does not affect its effect on the Negotiable Instruments Law, does not affect the validity of the instrument itself. This is essentially the language of nature dictates bills, notes, securities context is that all the rights and obligations of the instrument must be in strict accordance with the language of the instrument may be recorded, not to the text meaning other than to add or change any facts. Japan's leading scholars Lung section that: "Notes on the behavior of the debt is based on the instrument itself and the occurrence and existence, and as a legal instrument giving or receiving of reasons (trade, consumer loans, etc. existence or validity of any relationship. Even if trading contract is invalid or discharge, the resulting debt instruments will not be affected. "[1] In other words, notes, exercise of the right to hold only paper as necessary, hold notes creditors of the pArties is the instrument, which can claim to any of the debtors rights the instrument, without the reasons for certifying the bills. "establishment of the theory not because of a negotiable instrument can be greatly reduced when the risk and review the legal responsibility of the holder to protect the legitimate rights holder enhance the function of bills of credit, thereby promoting the flow of bills. does not recognize the notes will be non-sexual acts impede the free flow of bills, affect economic development. "[2]
(B no exception because of
However, the paper's non-sexual behavior is not absolute, in exceptional cases, because the legal relationship between and the notes are not completely separated, there are no exceptions because of circumstances, such as between the pArties in direct, relationship can be valid reasons on the grounds of defense, the holder acquires the instrument or if no payment is not paid on the value of the price, the holder can not enjoy those of his prior rights to the instrument, to have a bearer of bad faith or gross negligence is not applicable because no principle, when completed as a result of the aging notes the bearer the right to be destroyed, the holder may be completed by the time bills of interest by the pArties to exercise the right to request repayment of interest. not because of the relative characteristics, not on the bill because of the theory of non-negative, as the essential attribute of the Notes, no theory of relativity due to characteristics of the final goal is to achieve free flow of bills to protect the security of transactions.


Second, the bills without Cause and analysis of legal provisions
(A foreign bills without due regard to the provisions of the Law
As a result of the bill without the legislative principle of modern Negotiable Instruments Law, has been around the world, all regions of Negotiable Instruments Negotiable Instruments Law and the Geneva recognized uniform. [3]
Unified Law of Negotiable Instruments Negotiable Instruments Geneva representative of the civil law, adopted by most countries for the civil law. Its notes without Cause on the application, mainly in the "" Unifying Draft draft Law "> 17," "Unifying Check Law "> 22. <" Unifying Draft draft Law "> Article 17:" because the person was prosecuted for draft, not to based on its holder and the drawer or a prior personal relationship between a defense against holder, but the holder knowingly acquired the draft in its conduct detrimental to the debtor other than those. "<" Unifying Check Law "> section states:" The person being sued because of the check, the drawer may not be based on its or a prior personal relationship between the holder of defense against the holder, but the holder in obtaining the knowledge that his actions undermine the checks except the debtor. "[4]
Negotiable Instruments Law in Geneva, before the enactment of a unified world, the most typical written Negotiable Instruments Negotiable Instruments Law in France, Britain and Germany, Negotiable Instruments Negotiable Instruments Law. The French Law of Negotiable Instruments developed earlier, a result of a long history of the bill have seriously affected by Notes in circulation, in the 20th century, 30 years after the Geneva movement unified Negotiable Instruments Law, Negotiable Instruments Law has also been adopted in France notes without Cause. [5] also admitted that American Negotiable Instruments Law Bills without cause, for a system to limit the defense bill, but more emphasis on good access and price relations, 1882, the United Kingdom <<Law of Negotiable Instruments>> Article 38 (2 states: "If the legitimate holder, the holder the right to bill the parties without the prior ownership of the defective, but also from the former hand as a personal matter between the defenses have to effect, and may oblige the party responsible for all bill payments. "defenses off this section full use of the system, based on protecting the legitimate rights of the holder of the notes reflects the notes without because of the views and values. Germany half of the century, it has been done in the whole of the Federal Law of Negotiable Instruments of the unification of both liquidity and safety legal bills, the Negotiable Instruments Law is modeled on the Geneva-unification. Taken together , United Kingdom and Germany, Negotiable Instruments Negotiable Instruments Law Bills pay more attention to liquidity, and the French Law of Negotiable Instruments bills considered more as a cash transport role. [6]
(B China <<Law of Negotiable Instruments>> on paper without Cause and analysis of the provisions of
China <<Law of Negotiable Instruments>> on the provisions of bills without cause rather vague, theoretical circles there has been great controversy. <<Law of Negotiable Instruments>> Article 10, paragraph 1, "notes the issue, acquisition and transfer, should follow the principle of good faith, relationships and transactions with real credit and debt relations. "There are notes between the base relations and mixed paper denied the suspect without cause, so the irrational is obvious. but not from the article provides no real positive relationships and transactions between credit and debt, the issuance of notes, acquisition and transfer is void. so do not infer from the article notes the denial of the behavior of non-sexual. which provides that should only be applied directly claims and liabilities between the parties, this is not the notes are talking about because of the exceptions. So it seems to do the article provided the following changes, "notes the issue, acquisition and transfer, not to the underlying transaction between the existence and effective as conditions, but the bills must be directly between the parties deal with the real relationship between creditor and the debtor, or the rights holder can not get bills. "
Article 10, paragraph 2, "notes the acquisition, the consideration to be paid, that payment of bills should be acknowledged by both parties corresponding to the price." Theorists and practitioners of the Negotiable Instruments Law to challenge the above provisions, the general view that the provisions of Negotiable Instruments Law should not be relationship to the price because price is a relationship between the provisions of the Negotiable Instruments Law notes the lack of value the debtor may refuse to fulfill their obligations to make notes as a result of securities. Geneva law countries on Negotiable Instruments Law did not provide bills to pay right price price relationship is not Yishi As a co-holder of the necessary conditions. [7] <<Law of Negotiable Instruments>> will be interpreted as price, "notes corresponding to the two parties accepted the price is" too vague, if the parties out of true inner meaning that it would Notes to significantly lower or significantly higher than the face value of the consideration transferred to the holder, then obviously it does not meet the "corresponding price", which contradict each other. these two paragraphs, some scholars believe that Article 10 can be increased as follows content as paragraph 3: "violation of the preceding two paragraphs can only be as a direct instrument of the defenses between the parties, and other instruments does not affect their rights and obligations between the parties." [8] This may well be a viable modification method, but with the <<Law of Negotiable Instruments>> Article 13, paragraph 2, [9] duplicate the provisions of the wrong. which can be combined with article 11, paragraph 1 "due to taxation, inheritance and donation made according bills unpaid are not subject to payment of consideration. However, the holder rights to the instrument shall not be those of his prior rights "provisions, make adjustments accordingly. the provisions of Article 11 of the case notes will be made free of charge is limited to taxes, inheritance, gift three cases, and did not say when the consideration paid to obtain, in conjunction with article 10, paragraph 2, Article 11, paragraph 1, not from the front, without consideration of the payment shall be paid or the payment of price consideration is not quite clear when the legal effect requirement. For this reason, Taiwan, China can learn from Negotiable Instruments Law Article 14, paragraph 2 provides that "no consideration or not to quite the consideration for notes, shall not enjoy the right hand is better than before", section 11 of the Negotiable Instruments Law in China Paragraph 1 amended to read: "No consideration or not in consideration for notes equivalent, shall not enjoy the right hand is better than before." [10]
On non-sexual, like vague provisions of article 21 as well, "The drawer must be entrusted with the payment the payer with the real relationship between the draft and have to pay the amount of reliable source of funds", 74 "Draft The drawer shall pay the sum of the note with a reliable source of funds and ensure payment, "Article 83, paragraph 2," opening a checking account and using checks, credit should be reliable, and deposit a certain amount of money, " Article 88, paragraph 1, "check the check issued by the drawer shall not exceed the amount of the payer at the time of payment, the actual amount deposited," Article 90, paragraph 2, "the payer at the drawer the amount of the deposit sufficient to cover the check, the payer shall pay in full on the day. "These provisions are in response to the Negotiable Instruments Law of the existing non-issue because of the defects, if not from these provisions no direct negative behavior Notes result, but it is undeniable for cause. Although theorists generally believe that China is a result of legislative bills to the progressive development of knowledge without due process, but the current law appears in these fuzzy areas on the paper without reason the development of the theory of the formation of the obstacles.

For the above defects, China <<Negotiable Instruments Law to explain> "(ie <" On the problem of hearing instruments Lawsuits provisions>> made the following Article 14 provides that "debtors to Negotiable Instruments Law Article, the provisions of the twenty-one by, been endorsed for people to defend the bearer negotiable instruments, the people's court shall not support. "bills which, although not yet clear that the principle of non-sexual, but its not because of some progress made, is gratifying. In addition, China <<Law of Negotiable Instruments>> on and certainly not because there are a number of articles based on, such as Article 4, "notes the drawer production notes, the statutory conditions shall be in accordance with the signature instrument, matters recorded in accordance liable for the instrument ... ... ", Article 6," no civil capacity or with limited capacity for civil conduct in signing the bill, the signature is invalid, but does not affect the validity of other signatures, " Article 13, "negotiable instrument may not to the drawer or the holder between the front hand defenses against the holder. However, the holder knowingly made the ground for protest, except bills. debtors can do not fulfill a contractual obligation and they have a direct relationship between credit and debt holders, the defense ... ... ", article 14, paragraph 2," The forged or altered signatures, and do not affect the true signatures Notes effect ", 19" draft is a negotiable instrument issued by a payer in the sight of an unconditional payment of a specified date or fixed amount to the payee or bearer ", Article 22 Notes necessary items recorded, and 57 of "drawee or his agent payment, money order should be reviewed continuously endorsement and to review the legal status of prompt payer or valid documents. payers and their agents ulterior motives or a gross negligence, shall bear the responsibility ", these provisions consistent with internationally accepted practice, to adapt to non-development of the theory because of the trend is worthy of recognition. Links to free papers Download Center http://www.hi138.com Third, the conclusion
In summary, in order to ensure a strong flow of notes function, defined in the legislation because of the non-paper behavior is essential. Notes but non-sexual behavior of the essential properties of paper, no theory has been due to legislation generally for national instruments recognition and adoption of international instruments to follow a controversial ruling by the common criteria.

Notes non-sexual is not absolute, but relative, that is, our country adopted a relatively non-sexual, there are many legislative bills in the defense's case, defense of people defense and the right thing. But not in China on Negotiable Instruments because of provisions in general a bit fuzzy (although there are positive side, the paper listed in Article 10, 21,, 83, Article 88 and 90 of the Ordinance, on the Notes without Cause Theory develop and form a barrier, there is not a result of weakening of the horse. This distribution function for the instrument to play is extremely unfavorable. In order to ensure the flow of bills to meet the needs of economic development, referring to foreign non-sexual thoughts, my <<Law of Negotiable Instruments >> should be clearly defined in the legislation because of the principle of non-paper to non-sexual basis of relativity as an exception, the relevant provisions be adjusted accordingly to change the vague and uncertain state, adhere to the concept of non-sexual, so that our Negotiable Instruments Law is more adapted to its property requirements.




See documents:
1. Ponderosa are: <<Law of Negotiable Instruments instance of judicial interpretation Explaination>>, the People's Court Press, March 2006 edition.

2. Wangshi Hu: <<Notes Comparative Law Research ">, Law Press, August 2003 edition.

3. WANG Kai set: <<Law of Negotiable Instruments New Theory and Case>>, Law Press, September 2005 edition.

4. Gao Lei: <<notes without cause and legal issues related to cooperation in economic and >>,<< TECHNOLOGY "> 2008 No. 6.

5. Ma Dong: <<China <Law of Negotiable Instruments> perfect and notes no solicitors for the World Theory >>,<<> "-2002, No. 1.

6. Xialin Lin: <<on paper the principle of non-application of the law by thinking >>,<< application of law> "-2004 1.

7. Wang Xiao Fang: <<On the bills without cause and "The Law of Negotiable Instruments> the perfect proposal >>,<< Economist>> 2007 3.

8. Section Weihua, Hu Haitao: <<note the principle of non-theoretical study because of its Legislation >>,<< LAW> "-2005 No. 9.




Notes:
[1] Zhang Qi: <"From notes without cause in China <Law of Negotiable Instruments> shortcoming >>,<< legal AND ECONOMY"> 2008, No. 10, p. 58.

[2] See Zhang Cheng: <<On paper and non-sexual behavior relative - Comment on <Law of Negotiable Instruments> Article >>,<< Politics and Law> "-2006, No. 1, p. 85 page.

[3] Li Yan: <<On the bills without cause >>,<< Qinghai Teachers College>> 2008, 2, p. 86.

[4] Wang Rui: <<On paper the application of the theory because no>>, Jilin University, a master's degree thesis in March 2008, p. 11.

[5] See Li-Li Chen: <<Law of Negotiable Instruments on the instrument in China because of the non-thinking>>, Nanjing Normal University Master thesis in May 2007, p. 9-10.

[6] See Zhigang: <<On paper without cause>>, Southwest University of Political Science master's degree thesis in April 2006, p. 6-7.

[7] Zhigang: <<On paper without cause>>, Southwest University of Political Science master's degree thesis in April 2006, p. 34.

[8] Hu Desheng, Li Wen-liang: <"China voucher system Research">, Beijing University Press, 2005, p. 287.

[9] Article 13, paragraph 2, states: "The debtors can not fulfill a contractual obligation and they have a direct relationship between credit and debt defenses against the holder."
[10] See Wang Rui: <<On paper the application of the theory because no>>, Jilin University, a master's degree thesis in March 2008, p. 30. Links http://www.hi138.com Research Papers Download