Abstract This paper investigated the cancellation of States Endorsement relevant legislative provisions and considerations behind the legislation, summarize the range of effectiveness of such cancellation of endorsement, combined with our current problems encountered in practice is proposed for the design of the system Endorsement Obliteration related thinking.
Paper Keywords continuity of cancellation endorsement
In judicial practice, the cancellation of the impact on the right to flip often become a very confusing issue. Endorsement of the holder of the Notes for resale after the cancellation of his subsequent notes are entitled to the right? A Company B Company issued a payee bank acceptance bills, the bill back first endorser signature column name of the endorser at writing a 'non-negotiable', but no signature. Company B will be 'non-negotiable' after the cancellation of the bill endorsed to Company B, Company C has endorsed to the small company. Ding company will apply its discounting to get Prudential Bank. Small companies to provide proof of their hands with the former relationship between the real deal, while providing a written proof of Company B, prove that bill when the transfer to Company C, because the endorsee name written in error, were scraping rub (altered). After exchange inquiry, Prudential Bank conducted a discount on the bill. Failure to perform due to Company B and Company A contract between the foundation, a company then sued the court, requesting judgment A Company B Company does not assume the obligation to pay the bills and the Prudential Bank shall not be entitled to such rights bills bills. In this case, the two trial court decisions vary greatly. Two of these claims, the court of first instance dismissed the court of second instance verdict but are supported.
Second, the classification of cancellation endorsement
Endorsed bills Obliteration Obliteration is an important part. Endorsement of cancellation of, refers to the portion of the bill on the endorsement endorsement signatures or other records, be eliminated subtracted.
According to different criteria, can be divided into bearer endorsement of cancellation and cancellation of non-bearer of cancellation; intentional and unintentional cancellation of Obliteration. British scholars cancellation of the right of cancellation and no right of cancellation is divided into two kinds: the former refers to the bill carried cancellation of rights holders, the latter refers to theft, fraud, robbery, and other means to get the notes right after the paperless people's cancellation of, if it is the right of cancellation, the elimination of the right notes. Taiwan's 'law' in the General Lieutenant defaced divided into intentional and unintentional, intentional below is divided into bearer intentional and deliberate endorser situation.
Third, the effectiveness of cancellation endorsement
Endorsement of the effectiveness of cancellation endorsements mainly reflected in the impact on continuity. In accordance with the cancellation of the subjective will of people and their different endorsement of cancellation can be divided into several cases: one case is the bearer notes or endorser deliberately endorsement of cancellation to enable people to be relieved of Obliteration endorsement responsibilities; Another situation is not out intention bearer notes, and errors due to negligence of cancellation endorsement; another one is the endorser for change and for the cancellation of the items mentioned; Another is the bearer or endorsed person other than the person to the defaced. These four cases, the effect of cancellation and endorsement endorsements continuity identified for different effects, as mentioned earlier, only by having the right of cancellation rights holders of the Notes is based on deliberate act of cancellation endorsement to Endorsements on Negotiable Instruments occurred Obliteration effect.
Endorsement of cancellation on the effectiveness of 'unified bill cashier Geneva Law' Article 16, paragraph 2 states: 'The cancellation of the endorsement, the endorsement of the continuous, shall be disregarded.' 'German Negotiable Instruments Law,' 'France Negotiable Instruments 'and' Japan Negotiable Instruments 'have similar provisions.
Taiwan, China Negotiable Instruments on the effect of cancellation of the endorsement requirement also with the 'unified bill cashier Geneva Law' broadly consistent with, but more detailed. Taiwan Area 'law' Article 37 states: 'The cancellation of the endorsement does not affect the continuous endorsement by, for endorsement of the continuous, shall be disregarded. Cancellation of the endorsement, the impact of the continuous endorsement by, for endorsement of the continuous, deemed not defaced. 'That is, if endorsement of cancellation does not affect the continuity of endorsement, the endorsement of the contents were defaced as undocumented, that cancellation of effective; endorsement if the endorsement of cancellation affect the continuity of the cancellation of behavior deemed not defaced, that defaced invalid. Zhi according to the provisions of the Taiwan Negotiable Instruments Law, the holder deliberately defaced endorsement, the specific legal effects of the following will occur:
1 is Obliteration endorsee endorsement lends exempt obligations; legislation on the grounds that the holder of the original have been defaced endorsement recourse, rights holders can give up this right, as long as he interfere into other related rights person's rights and obligations.
2 in the ranking after being defaced endorsee, while in the holder before the cancellation of the endorsement is not in the middle of the endorser also be lifted endorsement responsibilities. Their legislation grounds that, in the middle endorser for the cancellation of the original have recourse endorsement, is due to the cancellation of rights holders behavior so that it no longer enjoys the right of recourse before hand, so the middle endorser should dispense with bills responsibility is consistent with the principle of fairness.
3 ranking in the cancellation of an endorser, or before the holder of cancellation after the endorsement of the people, are not exempted from liability. Since the cancellation of rights holders did not have an impact on them, the right people do not exist to relieve them of liability for the instrument meant, therefore still liable for the instrument.
In addition, there are scholars in Taiwan according to the different items mentioned Obliteration endorsement endorsement of cancellation to determine the effectiveness of: (a) if the bill is endorsed Obliteration rights holders all the items mentioned, were exempt Obliteration endorsee endorsement responsibility, After the cancellation of the ranking endorsee endorsement prior to cancellation of the endorsement of people exempted from liability after the cancellation of the endorsement are still responsible for the endorser responsibilities. (2) If the bill is the right person endorsement part Obliteration items mentioned, its effectiveness should be considered depending on the specific circumstances. First, the cancellation of the record to be recorded as an absolute, such as an endorsement of any cancellation of the endorser's signature, the 'endorsement' as does not exist even without cancellation of the other items mentioned, also occurred endorsement of cancellation All of the items mentioned effect, as 'endorsement' does not exist as a continuous affect endorsement, unless otherwise expressly specified. Second, the cancellation of the record to be recorded as a relative, such as cancellation of any indorsement of the endorser's name, the 'record' as if does not exist. Although regarded as records do not exist, but its effectiveness endorsement still happen, not because of cancellation affected. Third, the cancellation of the record was recorded in the case of matters, such as an endorsement of the cancellation of any date, the 'record' as if does not exist, its effectiveness endorsement still happen, not because of cancellation affected. In this case, does not appear continuous or discontinuous problems endorsement. Fourth, the cancellation of the record in the case of matters not recorded as an endorsement of any cancellation of the conditions attaching to the 'record' as if does not exist. Upon cancellation of harmful matter, play a positive role for the anti-endorsement, restore the liquidity of the Notes, endorse its due effect occurs, endorser shall bear all of its bills FLAC responsibility. In such cases, it will not happen endorse problem continuous or discontinuous.
Fourth, our urgent need of legislative endorsement of cancellation confirmation system
Practice of bills bills endorsed cancellation of behavior is very common. If the payee or endorsee endorsement after the bill before delivery to the endorsee, or negligently falsely documented the endorsee name, to be cancellation of the record or erroneous records before making such endorsement. In the event of cancellation endorsement, endorsements will be on the identification of an impact on the continuity, because our country is not relevant legislative provisions, therefore very difficult to deal with them.
In the preface of cases, for example, the Court of First Instance considered the practice of circulating notes the need to make a decision binding instrument law theory, theories darker color, with considerable radicalism. Court of second instance, strictly in accordance with the 'law' provisions, did not admit cancellation of theory, but does not recognize the 'Endorsement real continuity, by the endorser of the notes to supplement proven way outside to be proved' argument. From the verdict of view, in fact, is not standardized defaced or altered as a treat, a reflection of the second instance court cautiousness. Since there is no clear legal provisions, the Court of First Instance chose a theoretical interpretation, the second instance court chose the method of application of the relevant law. Two trial court has its rational basis for judgment, and judgment result is so big, it is clear that our country not be prescribed for endorsement of cancellation due.
Therefore, China should draw bills legislative experience of other countries and regions, increased endorsement of cancellation as soon as the relevant rules. Specifically, you can make the following provisions:
(A) the general case an endorsement of cancellation. By the holder or endorser unintentional negligence to cancellation of the endorsement that does not affect the validity of the original endorsement and for the identification of continuous endorsement. However, in exercising the rights holder, the burden of proof shall be responsible for the Department of cancellation by the notes right person to whom negligence and to the original meaning of Obliteration to prove.
2. Obliteration bills by having the right people on the right to deliberate, as the endorsement of cancellation behavior can occur effectiveness of cancellation endorsement on bills. Can be divided into:
(A) the holder intentionally defaced a particular endorsement, to dispense with the second endorser bills responsibilities. At this time, after being defaced endorsee ranking, but not cancellation of previously endorsed in people, but also relieved of responsibility, because it has been a result of the cancellation of the front hand and disclaimer, unable to exercise its right of recourse. But ranking in the cancellation of the previous endorser endorser, not because of its endorsement by cancellation of FLAC be relieved of his responsibilities, the holder exercised its right of recourse, its hand can recover its former until the ticket people so far. And again after the cancellation of behavior for endorsement, nor relieved of liability for the instrument.
(2) intentionally defaced endorsement endorsement, including the endorsement of human settlement can cancel themselves and their way of escape when the endorsement; former endorser endorsed by the transferee notes back then was defaced bills before its previous transferee transferee notes after endorsement.
(3) Although the endorsement of the holder, but not delivered on the bill before the endorsee can still cancellation of its endorsement. As described in the original endorser A human B endorser, prior to delivery of the notes is not intended to transfer the A and C, and B will be the name of the cancellation of the endorser and the name changed to c.
Endorsement endorsement of cancellation for continuous influence legislation can learn from Taiwan, provides that 'cancellation of the endorsement, does not affect the continuous endorsement by, for endorsement of the continuous, as undocumented. Cancellation of the endorsement, the impact of the continuous endorsement by For the continuous endorsement is deemed not defaced. '
As to whether the endorsement of cancellation by cancellation of signature or date stamped and documented States Negotiable Instruments were provided for. But in practice, if the cancellation of office is not signed, then it is difficult to identify the right person for the Department of bills or non-rights holders have to; if the cancellation of the date when the undocumented, then defaced with the cancellation of the previous endorsement after endorsement, and whether an endorsement in the ranking after the cancellation of the endorser and not defaced on as before, will be confusing, easy to breed conflict. Given both a bill Obliteration flaws, but also a bill behavior (behavior from the bill), it should have to type sex. Therefore, in order to stabilize bills relations conducive bills circulating in the endorsement of cancellation, it is best specified by the cancellation of the signature or seal, and record the date.