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Non-abstraction Theory of Bill

Author: WuZuo
Tutor: ZhaoXinHua
School: Jilin University
Course: Civil and Commercial Law
Keywords: Abstraction of Bill Non-abstraction of Bill Adversarial System Price
CLC: D922.287
Type: Master's thesis
Year: 2010
Downloads: 51
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Abstract

Bills as a kind of securities in the modern economic life, show an unique charm. Among them, the liquidity of the bills as a basic feature of the first instruments on the economic function of the instrument played a vital role. In the protection of the system among a variety of bills in circulation, the abstraction of bill is the most important. The abstraction of bill means that bill once producing, basis relation and bill relation part are right away mutually, and will not affect the existence of acts of the effectiveness of the Notes. It is theoretical foundation in voucher system, is vitality in circulation, which guarantees the effective functioning of the voucher system, in the Negotiable Instruments Law that has an important position.However, the abstraction theory of bill is not absolute. Notes due to the principle of free, in some special circumstances likely to cause the results of injustice. Therefore, adherence to principles and recognize the non-abstraction of bill under certain circumstances is the solution. Only in this way will achieve the proper legal and equitable nature, taking into account efficiency and equity.Generally speaking,the reason of non-abstraction theory is that the relationship between instruments were connected with the paper-based relationship. Typically under the abstraction theory, the law requires paper-based relationship and the relationship between separations of instruments, this is the normal instrument. However, between them, not two separate unrelated concepts, the basis of the relationship through the instrument behavior role in Notes relations, both with the economic nature of connection, therefore, basis of the relationship is implicated to the Notes in certain circumstances. At this point, because the inter-linked instruments have led to the emergence of a result of the theory.The non-abstraction of bill mainly manifested in the following areas. First, between the direct interested party who accepts and gives bill, cause relation has direct impact to bill relation effect. Twice, the bearer gets a bill without paying equitable price or well-balanced price, the bearer can’t enjoy the bill right more than the remote holder. Third, when the right of bill isn’t effective because of a given period of time, the bearer requests to return back owing to cause relation to the drawer or the acceptor within the limit to benefit. Forth , if the bearer getting bill is illegal, or because of the culpable negligence or the blemish being fully aware of whose remote holder bill right and still accepts bill possession transfer’s , then he does not enjoy bill right. Thus, the non-abstraction of bill not only has the realistic basis of the theory, but also has profound significance. First, it helps to implement the principles of civil justice and good faith. Second, it helps to overcome the limitations of abstraction theory. Third, it helps to maintain the unity of the Notes adversarial system. Fourth, it helps to balance the interests between the parties and to promote the realization of the value of legal justice. Fifth, it helps to build a harmonious bridge between liquidity and security. Finally, it is great significance in today’s world and China’s real economic lives.The attitude of our country bill legislation about the non-abstraction of bill is ambiguous and applies tending to chaos. Specifically to the "Negotiable Instruments" provision which is reflected mainly in Article 10, Article 21, Article 74, Article 82, Article 87, and Article 89. These provisions, from the different levels to be provided on the non-abstraction theory. Although it prevents the use of instruments to disrupt the economic order of the act, but it undermines the basic flow of the Notes function, hinder the instruments as liquid securities play its role. Therefore, we need an accurate understanding of the legislative instrument on the basis of its assessment in depth, and can devise a sound notes from the following legislation:First, adjusting the legislative intent of Negotiable Instruments Law. Negotiable Instruments Law should be based on the objective situation of economic development to adapt, adjust their values. The promotion of notes in circulation as the legislative intent in the relevant legal provisions should be clearly defined against the abstraction theory of bill, so that the abstraction theory of bill truly become the cornerstone of Negotiable Instruments Law.Secondly, clarify the application of a clear non-abstraction theory. Can be adjusted the application of the non-abstraction theory in Article 21, Article 74, Article 83 to, in particular, to strictly limit the scope of application of non-abstraction theory.Third, modify the relevant provisions on the price. With regard to the price problem, the adoption of China’s Taiwan region Negotiable Instruments Law Article 14, paragraph 2, states: "No right price or not to quite get the right price of the Notes shall not be entitled the right hand is better than before." The article 11, paragraph 1, make modified accordingly.Finally, the perfect the relevant supporting systems. With the modification and improvement of the provisions, we should strengthen the relevant judicial interpretations, administrative rules and regulations of the synchronized sound. In particular, the specific details of the People’s Bank should be modified in order to maintain consistency in the law, so as to ensure the normal operation of the Notes. In short, the abstraction theory of bill and the non-abstraction theory of bill is the relationship between the Notes client, as well as bills static security and dynamic security technology. Biased to any one of them is undesirable, and only insist on the unity of the abstraction theory of bill and the non-abstraction theory of bill, can not only promote the notes in circulation, but also to protect the legitimate interests of parties to the instrument, give full play to the economic function of the Notes.

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CLC: > Political, legal > Legal > Chinese law > Financial Law > Securities and Management Act
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