Study On Complementary Right Of Incomplete Instrument

Incomplete instrument is a signed writing, the contents of which show that at the time of signing the parts of necessary records are incomplete except signature, but that the signer intended it to be completed by the additional items. In this way, those who receive the incomplete instrument can complement the bill by themselves without authority of the signer. Incomplete instrument can save transaction costs, activate social economies. Hence, they gained its legal position in the most of countries, and finally, the incomplete instrument system came into being.The core of incomplete instrument system, as well as the origin of dynamics, is its complementary right. In this regard, our current legal system provides little, academic and systemic research still devoted little, this paper on complementary right aims to redefine the concept of complementary right, deeply analyze the nature of complementary right, especially more in-depth study on incomplete instrument granted subject, exercise subject, the scope of the exercise, to add the rules of complementary right to the existing notes system with the minimum conflict, to achieve the safety and smooth flow of incomplete instrument. This paper is divided into five parts:The first part is an overview of incomplete instrument. First, redefine the concept of incomplete instrument by combing elements of incomplete instrument, and discriminate the related concept; Then, define the concept of complementary right by relying on the reconstruction of the concept of incomplete instrument-this paper argues that complementary right means that the receivers of the incomplete instrument are entitled to fill the blank words and numbers with the authority of the signer, after complementing the instrument, it becomes a completed instrument. Finally, analyze meaning and nature of complementary right-this paper argues that the complementary right is neither a right of formation, nor a right of bill. It is a special right, beyond the bill, but based on empowerment from the authority of the signer.The second part is legal analysis of the complementary right. This paper argues that the existence foundation of complementary right is "authorize said", that is when the incomplete instrument is formed, the person who has the right to fill the blank is the drawer, the complementary right of incomplete instrument is the transfer of filling rights.The third part is obtaining the complementary right of incomplete instrument and the exercise. This paper argues that obtaining standards of the complementary right adopt "compromise said", that means the holder who has the legitimate right to fill the blank whoes right directly obtained from the prior party should adopt "explicit standards"; the holder who obtains the incomplete instrument in good faith should adopt "implied standards"; the exercise of the complementary right is the legitimate holder who also has the capacity for civil rights in addition to the drawer and its agents, in accordance with the contents of the immediate prior express or the contents determined by the direct prior relationship or transaction habits exercises or transfers the complementary right in person or in entrustment, aslo exercises once or several times; according to whether the date of issue and the due date are blank or not, prescription for exercise period differs.The fourth part is the force of law on the complementary right of incomplete instruments. This paper argues that, first, the effect of before exercise of the right to fill:upon delivery of incomplete instrument, the drawer has no right to demand the return of notes, nor the right to revoke or change the contents; before the exercise of the right to complete definite items, the holder does not enjoy the right of bill, but have the right to transfer the complementary right by way of transfering instrument; if the incomplete instrument was lost or stolen, the person who lost it can notify the payer to stop payment, apply for public notice, require replacement of instrument from drawer before the exercise period through the past; second, the effect of after the exercise of the right to fill:when the holder who has complementary right legitimately exercised the right, the instrument which was filled has the same effect as full paper, but the effects will differ as whether the transfer is followed or not by incomplete instrument rules; when the holder who had no complementary right completed, he will not enjoy the right of bill, nor the return of the interests of investments; when the holder exceeded his authority, he will have the right of bill, but debtors can have the rights on the defense of human who complemented with their own ultra authority, which has a direct relationship between credit and debt holders; for complementary omission, the effect will vary as the blank matters of instrument are definite need or relative need to the items recorded.The fifth part is the legal status of the complementary right and legislative perfection. For lack of legal status, this paper argues that the Supreme Court makes judicial interpretations in advance which contain broadening the carriers from the exercise of the complementary right to drafts, promissory notes, extending contents of the records to all the necessary items, expliciting the obtaining standards of complementary right, to fill the legal gaps on the exercise subject, the exercise way, the exercise period, to amend the effect of before and after the exercise of the complementary right, to provide a legal basis for practice, to regulate a variety of behaviors among the circulation of incomplete instrument, to develop awareness of the incomplete instrument specification;then up to the modified conditions of "Negotiable Instruments Law"are ripe, the relevant provisions are made rise to law.