A Study On Invalidating Judgment And Judicial Relief System Of Bills

The invalidating judgement of the public summon for exhortation plays an important role in protecting the rights of people who lose negotiable instrument. To make it more specific, by applying for the public summon for exhortation, the original holder would receive the invalidating judgement, which is a widely used means of relief after lost of negotiable instrument. Though this relief system has been constructed and improved to varying degrees by legislative practice at home and abroad, there are theory conflicts between the system design of invalidating judgement and substantive law for negotiable instrument. For example, the effect of transfer act after applying for the public summon for exhortation and before making the invalidating judgement is totally not recognized by law. Nor can bona fide acquisition of the right of negotiable instrument during this period be recognized. According to Civil Procedure Law of the People’s Republic of China, initiating legal action is the judicial remedy for the interested party when he/she is once more in need of the relief for the invalidating judgement. Yet the law doesn’t express the legal action explicitly and there are different interpretations in practical field. Thus by studying and analyzing the above disputes, this thesis will try to state my own opinion that bona fide acquisition of the right of negotiable instrument during the period of public summon for exhortation should be allowed and suit of the third party applying for reversing the judgements is the most appropriate means of relief for the invalidating judgement. Then corresponding measures to improve will also be put forward.The thesis consists of three parts.The first part introduces the legal principles of the invalidating judgement and the related judicial relief system. It helps lay a theoretical foundation by interpreting the basic theory of invalidating judgement and the related judicial relief system.Based on the first part, the second part analyzes the existing problems of the current system of invalidating judgement and the related judicial relief and tries evaluate them from the perspectives of theory and practice. This part will first talk about the effects caused by conflicts between the rules of invalidating judgement in the civil procedure law and the theory of negotiable instrument in the substantial law, mainly about the comparison between the rules of bona fide acquisition of the right of negotiable instrument and different instances of legislation, then try to analyze the conflicts between rules of bona fide acquisition of the right of negotiable instrument and construction of the current system of invalidating judgement. Besides, since there is no identical doctrine about the judicial relief system of invalidating judgement, this part will also introduce different interpretations about the current regulations and make a horizontal comparison with varying ways of handling in judicial practice.On account of the analysis in the second part, the third part will try to find a solution to settle the conflicts between theory and practice, which includes coordinating the coexistent relation between public summon for exhortation and bona fide acquisition for negotiable instrument, definitely establishing the suit of the third party applying for reversing the judgements as the system for invalidating judgement. Finally the suggestions about the system design and the improvement of legislation will also be given.