Notes The Transfer Of Endorsement Of The Legal Issues Research

The endorsement of negotiable instrument law refers to the bearer makes subsidiary instrument behavior at the back of the instrument or sticked list for the transfer of the instrument right or other purposes. The transfer endorsement is a kind of endorsement for the transfer of instrument right. It is the core of endorsement system and the realization way of the endorser right . It embodys the financing functions of the instrument. In view of the transfer system's primary coverage of the instrument, this article is divided into five parts to conduct the research.Chapter one is the outline of the instrument transfer endorsement. . Includes two parts, One is the meaning of transfer endorsement, explains the concept of the transfer endorsement, points out the transfer endorsement concrete form, analyzes the legal nature of the transfer endorsement and thinks the unilateral legal act theory is the most reasonable explanation on the legal nature of the transfer endorsement. Another part is about the comparison between the endorsement transfer and other creditor's rights transfer way. The instrument transfer way is mainly endorsement and has the very big difference with the general creditor's rights transfer way. But speaking of instrument 's transfer way itself, also has endorsement and delivery two different transfer ways. This article carrys on the comparison to the endorsement transfer and other transfer way from many aspects, expounds the distinct characteristics of transfer endorsement.Chapter two is the general transfer endorsement. General transfer endorsement includes full endorsement and blank endorsement two ways. Full endorsement is the most formal and standardest endorsement, regardless of record item and endorsement effectiveness, fully manifests the characteristic of transfer endorsement. Blank endorsement only has endorser's signature and the endorsee should not be recorded. Blank endorsement has it's own unique form appearance, also has its unique transfer way. However, due to China's "Negotiable instruments law" does not acknowledge blank endorsement, therefore, the transfer way in China could not be applied in practice. In order to resolve the question of the blank endorsement transfer, the Supreme People's Court has stipulated the compensation of the blank endorsement through the judicial interpretation. However, the stipulation is not perfect and unable fundamentally to solve the problem. This article has analyzed the blank endorsement rationality as well as our country forbids blank endorsement unfairness and put forward own proposals.Chapter three is special transfer endorsement. About what situations specifically the special transfer endorsement includes, the views of scholars are not consistent. This article regards back endorsement, overdue endorsement, nonnegotiable endorsement, hidden guaranty endorsement and unsecured endorsement as special transfer endorsement to research. Firstly, although back endorsement has not been stipulated explicitly in China's "Negotiable instruments law", but looking from the related stipulation, has not been limited. Back endorsement has been acknowledged by various countries and the area for it's promotion of the circulation of instrument. Secondly, about the definition of overdue endorsement, various countries and the area have not uniform views. This article analyzes the advantage and disadvantage of various legal regulation on overdue endorsement and put forward the proposal on how to limit overdue endorsement accurately. Thirdly, nonnegotiable endorsement reflects the protection for the party meaning autonomous right, avoids the drawer or the endorser has the relation with other people outside direct subsequent party and guarantees the drawer or the endorser contradiction power. Although the drawer and the endorser have the same purpose on nonnegotiable endorsement, but China's law has actually stipulated the different effectiveness. This article argues that this shortcoming should be amended. Fourth, hidden guaranty endorsement has not been stipulated in China's "Negotiable instruments law", the scholars also rarely have discussed it. But this phenomenon actually has existed in the reality transaction, has overcome the instrument guarantee fault and has promoted the instrument circulation. So, it is worth the deep research. Fifth, unsecured endorsement is acknowledged generally in the Anglo—American Law System countries, Geneva Convention, the majority of the civil law countries acknowledge unsecured endorsement with certain conditions and China's "Negotiable instruments law" does not recognize the unsecured endorsement. This article believes that it should be decided by the market whether the endorser can record avoid presses for payment to eliminate the instrument responsibility. If endorsee does not accept this kind of endorsement records, the endorser is also unable so to endorse. Therefore, giving endorser and endorsee the free option of the record and acceptance unsecured endorsement, defends parties meaning autonomy, also strengthens the instrument circulation function. China's "Negotiable instruments law" should acknowledge clearly unsecured endorsement.Chapter four is the continuity of the transfer endorsement. The endorsement continuity refers to during the process of endorsing which orders to transfer the instrument right, the signature which signed by the endorser who transfers the right and the endorsee who assigns the right link up on the order. This article discusses the function and effectiveness of the continuity of the endorsement, the conditions of continuity endorsement constitution as well as how to determine the continuity of the endorsement in peculiar circumstance and proposes own views to the instrument continuous imperfect question in China's "Negotiable instruments law".Chapter five is the suggestions of the improvement of China's transfer endorsement system. In comparison with "Negotiable instruments law" of the advanced countries and regions, China's has many unreasonable, imperfect place and urgently needs to improve. This article proposes perfect suggestions about endorsement rules encountered frequently in the practice. Namely, blank endorsement should be recognized in order to reflect the efficiency value of the instrument; erasure endorsement system should be established to promote the instrument circulation; the risk of forged endorsement responsibility should be made clearly to enhance the responsibility sense of the parties and protect the legal rights of good parties.