Research On Legal Rules Of Electronic Negotiable Instrument

It is our idea that electronic negotiable instrument is still negotiable instrument.Basis on this standpoint, this article tries to figure out which suggestions are proper forChinese electronic negotiable instrument to be followed and adopted. To accomplishthis task, it argues that the issue is that negotiation should be paid attention on beforeeverything, that is, looking through Measures for the Administration of ElectronicCommercial Draft Business, it could conclude the four main ideas in the logicalsequence: the electronic bill of traditional instrument rules, flexible, exclusion and thenew requirements. This is analysis of our current electronic bill of commercial draft.Chapter one: give a brief overview of concepts and regulations of electronicnegotiable instrument. Defining the concept of electronic negotiable instrument, we cantell the difference between electronic negotiable instrument and traditional negotiableinstrument, the difference between electronic money and electronic payment. So we cansee how securitization grows up from rights. Finally we can say, theoretically, electronicnegotiable instrument is negotiable instrument in nature. The changes come fromcarriers. Still electronic negotiable instrument is one form of securitization of rights.Some graphics and figures should be given to show the flow and structure of electroniccommercial draft in china. In addition, the situations and treatments that are issues andregulations of electronic negotiable instrument about some other countries should beintroduced.Chapter two: the coordination of electronic negotiable instrument and traditional instrument. Although the form changed, electronic negotiable instrument still complywith the traditional law of negotiable instrument. At first, in legal realm, the writtenform should include electronic data. So, electronic negotiable instrument must abide therules of negotiable instrument about the forms and meanings. Second, make sure theparties to electronic negotiable instrument and their rights and duties. Contrast totraditional negotiable instrument, the numbers of the parties to electronic negotiableinstrument should increase, but there is no change in their rights and duties. At last, weshould research the signature and seal of a part to an electronic negotiable instrument.According to some rules of the law on electronic signature, we can prove the signatureand seal to an electronic negotiable instrument is the same thing in traditional affairs,only differed from its form.Chapter three: flexibility of electronic negotiable instrument. The first importantflexibility comes from the drawing and acceptance to the electronic negotiableinstrument. Because the drawing’s reversible, the acceptance has become a preprocedure against the drawing. In effect, the acceptance has more impact on the drawing.Second, the rules of presentation for payment and the responsibilities on thepresentation’s examination have some changes. The time limit for presentation forpayment in our country has been prolonged to one year. In the meantime, legal effecthas been flexible. For example, the examination of presentation excludes the form’sexamination, the due time of examination has moved up and the executive has been theelectronic system for exchange, and so on. Furthermore, the content of goodwillpayment extends and culpable negligence has been excluded form maliciousness. At last,publication principle and the rules of possession to negotiable instrument have changedtoo. The behavior of the electronic commercial draft is not related to independence inthe majority of cases. The legitimacy of the negotiable instruments has not beeninvolved in negotiable instrument law in our country, but the electronic commercial draft did. Clearing system login and electronic information transfer constitutethe electronic negotiable instrument of delivery mode, this change lies in theelectronic negotiable instrument rights would be more precise in their possession.Chapter four: the exclusive rules of electronic negotiable instrument againsttraditional instrument. First, the exercise of the right of process and the place where theinstrument drew has no longer been applied. Electronic negotiable instrument runsentirely in the network, there is no room for the exercise of the rights on the negotiableinstrument of traditional place in the negotiable instrument law. Secondly, thetreatments about the negotiable instrument rights’ violation and the relief system ofloses are no longer fit. The instrument exchange system becomes "bill pool", so that theelectronic negotiable instrument does not exist in an absolute loss situation but anexistence of relative loss. So, the traditional public summons, stopping of payment cannot play a real role in relief. And the way by that control the electronic signature tosolving the problem can not be called a real sense of "negotiable instrument relief",because it is not the traditional relief in nature. Finally, forged or altered problem doesnot exist on the electronic negotiable instrument. The elements of electronic negotiableinstrument have preset, without permissions are not able to make any changes to the parelements. There is no forgery negotiable instrument. In addition, the electronicsignature can not like the traditional signature or seal that kind of imitationand counterfeiting, high safety, so that the electronic negotiable instrument is notpresent in the bill forgery.Chapter five: the new requirements of electronic negotiable instrument develop thetraditional instrument rules. This part belongs to its own unique rules of electronicnegotiable instrument. First of all, enable and development of information enquiry andregistration functions is the amendment system of China’s commercial credit function,not only makes the necessary items more clarity and force, but also makes up the electronic negotiable instrument by mend the negative impact of non-causation ofnegotiable instrument. Secondly, it is important that is to find out the status ofelectronic certification authority and legal responsibility. In the electronic negotiableinstrument, due to the certification institution is caused by the fault of a false signature.It should bear tort liability, and according to the current legislation of certificationbodies, its responsibility is the principle of presumption of fault liabilityprinciple. About the scope of compensation, we suggest some approach aboutceilings. The electronic equipment fault liability would be thought about at last. Theelectronic equipment fault liability does not exist in the traditional negotiable instrumentlaw, but in the electronic negotiable instrument law the responsibility can not beignored. In this part, we should mainly discuss the imputation principle of electronicequipment fault liability in our country at present prevention and contingency plans tohandle network crisis.Chapter six: the construction of China’s legal system of electronic negotiableinstrument. First, we would think about the selection of approach on the legislation ofelectronic negotiable instrument and those legislative principles. Based on thefunctional perspective, the electronic negotiable instrument and tradition negotiableinstrument will exist side by side for a certain period, so we should undertake the job bytwo steps: first, by researched the integration of "Negotiable InstrumentsLaw","Electronic Signature Law" and "Measure for the Implementation ofAdministration of Negotiable Instruments", we can induce some principles and the basicspirit, perfecting the "Measure for the Business Management of Electronic CommercialDraft","Measure for the Management Electronic Commercial Draft System", and so on.Improving the series of supporting system would help to improve the electronic billrights of parties, obligations, norms system access, exit, operating, supervision andcrisis management and etc. Second, based on the integration of existing law, a law of electronic negotiable instrument would be enacted in our country when the time isright. Through the improvement and construction of law at the same time, we can speedup the construction of national electronic negotiable instrument business center.