The Research On Legal Risk Sharing System Of Forged Bills

Negotiable instruments were primary and the most typical negotiable securities;they had the reputation of “father of negotiable securities”. Since the appearance ofnegotiable instruments, they played an important role on accelerating the developmentof commodity economy and promoting extensive trades. Negotiable instruments wereconsidered as the carrier of mercantile credit, and they were important to develop theeconomical life and even have been called “commercial currency”. Negotiableinstruments have been the indispensable means of payment by credit of currenteconomical life for their great negotiability.However, when we realize the importance of instruments to the development ofmarket economy, we should notice the following occurrences of forged bills andcrimes which trade on forged bills increase step by step. This is not only an aggressionupon bill parties’ rights but also a severe hindrance to the development of marketeconomy and stability of financial order. Therefore, the countries all over the worldestablished regulations to forged bills at the legislation level.On the basis of specific understanding the legal connotation of forged bills, thedissertation describes the elaborate discussion about the legal responsibility and legalrisk sharing of forged bills in the two main systems of law of negotiable instrumentsfrom the horizon of comparative jurisprudence. Meanwhile, the author analyzes theexisting related legislation stipulation of forged bills in China and proposes perfectlegislation suggestions which directed to the commitment of responsibility and risksharing of forged bills in China with the references of advanced foreign legislationstipulation.The main part is divided into five chapters apart from introduction and epilogue.Chapter one includes the general theories about forged bills. In this chapter, the author discusses firstly about the legal connotation of forged bills and distinguishingextensions of related definitions. With regard to the legal connotation of forged bills,there are two extremely different definitions in Genevese Uniform NegotiableInstrument law system and the Anglo-American Negotiable Instrument law system,but there is no specific definition in Chinese negotiable instrument legislation. Thelegal connotation of forged bills only existed in the pure theory researches. The authorbelieves that forged bills should be forged draft and forged signature on negotiableinstruments by forging others’ signed and sealed signature, including forged draft andsupplementary behaviors of forged bills. The essential feature of forged bills is thesigned and sealed forgery of negotiable instruments. This chapter also involves thedifferences between forged bills and related extensions of the definitions on the basisof specific understanding the legal connotation of forged bills, which has the contentof the similarities and distinguishing characteristics among no right to act as agent toforged bills and behaviors of negotiable instruments, agent behaviors of negotiableinstruments, faked instruments and the behavior of seal embezzlement. From thebehavioral essence of forged bills, the author finds out that forged bills is not thebehaviors related to negotiable instruments but a special civilian tort, and according tothe above summarizes the identified and constitutive requirements of the behavior offorged bills.Chapter two explains the bearing legal responsibility of the subject in legalrelation on forged bills. This chapter approaches attributing and bearing of legalresponsibility after different subjects’ behaviors of forged bills based on theclarification of the problem that the subject in legal relation on forged bills. Theemphasis is the bearing legal responsibility of the forging party, the forged party andthe payer on forged bills.Chapter three makes a comparative research on the risk responsibility attributingof forged bills. Although under the circumstance of forged bills, all of them who arethe holder, the payer, the forged party and the real person liable for an instrument havethe right to ask for damage awards to the actor who committed bills forgery, when the actor escaped or could not afford to the damage awards, claim could not implementthe protection for their rights. For the time being there is a problem that bearing riskresponsibility of forged bills. In this chapter the author adopts the methods ofcomparative analysis and research, explores the various provisions of liability andsharing after occurring forged bills between Genevese Uniform Negotiable Instrumentlaw system and the Anglo-American Negotiable Instrument law system. The countriesof Anglo-American law and Continental legal system hold the same idea towards thebearing risk responsibility of forged draft, that is to say, the payer should take the riskresponsibility of forged bills resulted from forged draft. They hold different provisionstowards matching which conditions the payer could redirect the risk when he hadpayment errors. Continental legal system considers the method of contract as theexceptional case of risk responsibility of the payer, yet Anglo-American law makesrules of “Estopell Principle”,“ratification” and “the forged party’s (drawer’s) faultliability” as exceptions. Anglo-American law and Continental legal system haveentirely different views on the provisions that risk responsibility of forgedendorsements. The key differences lie in if forged endorsements could result in theinterruption of endorsements’ succession and even on the occasion of endorsements’succession if the right of negotiable instruments would acquire in good faith.Chapter four interprets the influence on legal risk responsibility distribution ofbill forgery recognition, which is the innovation point of the dissertation. This chapterdiscusses the occurrence of altering of complicated legal relation about forged billsunder the special circumstance that the forged party would admit the forging signatureon negotiable instruments even knowing the forging behaviors out of theconsideration of some particular reasons. In the countries of Anglo-American law it ispositive towards bill forgery recognition, yet in the countries of Continental legalsystem generally speaking it is believed that the behavior of bill forgery has no rightof ratification. In the legislation of negotiable instruments in China, there is noclarification that if the behavior of bill forgery could have the right of ratification. Theauthor maintains an opinion that only the behavior of bill forgery causing the interestaggression of the forged party could bill forgery carry out ratification. Bill forgery recognition is a kind of legal behavior with the characteristic of positive right offormation. Whether bill forgery recognition has retrospective effect must not makesweeping generalizations, it depends on the illegality of the forgery and theinvestigation of legal liability will of the forged party towards the forging one’sresponsibility. In the final part of chapter four, the author probes into the problems oflegal responsibility of relevant parties on bill forgery recognition and the influence ofrisk responsibility attribution.Chapter five elaborates the current situation and improvement of bearing riskresponsibility of forged bills in China. At present, there are several laws andregulations applicable to bearing and distribution risk responsibility of forged bills inChina. The laws and regulations are Law of Negotiable Instruments of the People’sRepublic of China, Payment and Settlement Procedures of People’s Bank of China,Measures for the Implementation of Negotiable Instruments Management, Regulationof Supreme People’s Court on Some Issues Concerning Trials of Bills Dispute Cases.All of these laws and regulations consist of the structure of handling riskresponsibility commitment of forged bills in China. However, there are nodistinguishing cases from forged draft and forged endorsement of the legislation ofnegotiable instruments in China. In addition, there are legislative defects existing inthe current negotiable instruments legislation, particularly the regulations of paymentreview duty of the payer, the risk responsibility of forged bills committed by theholder, the protection to the forged party. Aim at solving these defects, the authoradvises that from now on we should take the references of advanced foreignlegislative experiences and improve China’s legislative provisions about relevantlegislations of forged bills.