Research On Legal Issues On Blank Endorsed Instruments

Negotiable instrument was once called’commercial currency’by Marx. However, modern negotiable instrument not only has the function of paying just like currency, it has developed to a financial tool combining paying, exchange, credit, financing and so on. It is these important functions that makes negotiable instrument to be an irreplaceable tool in commercial transaction. Fully in use of these important functions depends on endless circulation of negotiable instruments, while the circulation of negotiable instruments depends on endless transfer. In theory, there are two methods for transfer of negotiable instruments, endorsement transfer and simple delivery, among them, endorsement transfer is the basic and common way of transfer. For the importance of endorsement transfer, some scholars think the circulation of negotiable instruments will not be guaranteed once endorsement transfer is not in use, while we can’t set up the legal system for negotiable instruments in modern sense if there is no circulation.As endorsement system is so important, intensive study on it is needed. According to the purpose, endorsement can be classified into transferable and non-transferable endorsement, among them, transferable endorsement is often used in practice. Transferable endorsement can be also classified into general and special transferable endorsement in detail. The blank endorsement researched in this thesis is one kind of general transferable endorsement, complete endorsement is its counterpart, the difference of them lies in whether the items are recorded completely. Blank endorsement is a kind of endorsement that lacks in the recording of endorsee. There is only the signature of endorsers in this kind of endorsement and endorsers haven’t filled the name of the endorsees in the appointed columns. Although lacking in the recording of endorsees’names, blank endorsements’validity can’t be denied, because its existence can do good to the full play of the value of efficiency and justice, especially to the promotion of negotiable instruments circulation. Meanwhile, in practice, comparing to complete endorsement, retransferring method of blank endorsement is more flexible and the process is more convenient, so blank endorsement is more popular.Blank endorsement not only needs to be put into practice, but needs some theoretical support, Rechtsschein theory supplies it the basis of legal principle. The reason why Rechtsschein theory can be applied to blank endorsement is that it meets the requirement of the application of Rechtsschein theory:first, blank endorsed instruments has the existence of appearance that the law requires, apparent truth here needs extensive explanation; second, the appearance of blank endorsement is sufficient to cause the trust of trading parties; third, this kind of appearance of blank endorsement is caused by rights-holders. Applicability of Rechtsschein theory guarantees the safety of the dynamic in transaction better. In traditional theory of negotiable instrument law, action of negotiable instrument should be style-required, Rechtsschein theory breaks through the constraint of the traditional theory of negotiable instrument law, excludes the possibility of the objection of remitters to blank endorsed instruments and protects the interests of bona fide holders better.On the discussion of the validity of blank endorsement, there is ’negative theory’,’affirmative theory’ and ’theory of pending validity’in this field. Our Commercial Instrument Law admits the’negative theory’and thinks name of endorsee is the necessary item recorded in the endorsement, which in fact denies the validity of blank endorsement in reverse, while the ’theory of pending validity’is used in judicial explanation. New legislation is needed to solve this conflict. Meanwhile, the attitude toward identification of validity of blank endorsement in juridical practice begins to alleviate and more and more people notice the effect that blank endorsement has on circulation, which will necessarily affect the lawmakers’attitude toward blank endorsement. Apart from analysis on validity of blank endorsement, this thesis also aims to discuss the special rules of blank endorsement, such as complementary rights of blank endorsement, the way of blank endorsement retransfer and special methods for identification of blank endorsed continuity, to make the foundation for confirming its validity on the layer of Commercial Instrument Law in the coming days.