Research On The Review Obligation Of Commercial Bank Bill Business

The volume of China’s bill transactions has been increasing with the development of the market economy,along with a large number of disputes.Commercial banks play a vital role in the market transaction structure of China,and most of the bills eventually flow to them,thus drawing commercial banks into many bill disputes.The identification of the commercial bank’s review obligations in bill business determines the conditions under which the commercial bank should assume responsibility and also affects the bill holders to acquire bill rights.In this issue,the identification of the gross negligence of commercial banks is particularly critical.So this article through to our country law and the judicial interpretation stipulation research,discusses the bank’s examination duty as well as the gross negligence determination.China’s law doesn’t have clear stipulation on the judgment of gross negligence.Therefore,on the basis of summarizing specific conditions in practice,the Supreme People’s Court put forward specific requirements on identification of gross negligence,namely,the payer or the agent payer of the bill shall recognize upon payment whether the bill is forged or altered.If the bill is to be identified as forged or altered upon payment,the payer or the agent payer is considered to have gross negligence.However,such kind of regulations actually conflicts with the provisions on the review obligation in the Law of Negotiable Instruments of China.The Law of Negotiable Instruments requires banks to review the continuity of bill endorsement while reviewing bill transactions,which means to conduct a formal review on bill transactions instead of deciding whether duty of care is fully paid by the final result of the review on forgery or alteration of the bills.Meanwhile,if that the degree of “identification” required in the judicial interpretation is to be achieved,it is necessary to review the authenticity and legality of all transactions on bills comprehensively and in details,which means to examine comprehensively and substantively.The review on bills required by the Law of Negotiable Instruments is formal.Therefore,judicial interpretation hereon conflicts with the requirements of law.In judicial judgment,there are also different judgments for same cases.In order to resolve this conflict and ensure both of the efficiency of bill circulation and the security of bill transactions,a compromised substantive review is adopted,which is to examine the authenticity of underlying transactions through the Rechtsschein Theorie,and the duty of identification on its effectiveness shall not be borne by banks.In the field of bill law,in addition to the principle of commercial Rechtsschein Theorie,non-causation of bill behavior is also one of the most basic principles of bills as transaction vouchers.International absolute theory of non-causation requires that the behavior of the bill is completely separated from the causation.However,China’s Law of Negotiable Instruments does not actually adopt this theory.According to China’s Law of Negotiable Instruments theory,relative non-causation is applied in fact,that is,to some extent,admitting that basic transactions’ impact on bill behavior.Therefore,under the concepts of relative non-causation and review on authenticity of the underlying transactions,it is necessary to clarify the applicable standards to judge the gross negligence of commercial banks in bill transactions.In the consideration of basic theories,it is necessary to comply with the civil and commercial law.The basic scope of the determination of gross negligence in theory,that is,gross negligence is theoretically between intentional and negligent and more inclined to be deliberate.In the mode of review,through judgment on external manifestation of subjective attitude,that is formalization of substantive review,the review on authenticity of underlying transactions shall be carried out through external manifestation of the transaction.In actual transaction process,the payer or the agent payer shall,in conjunction with the specific guidance and methods issued by the central bank and other institutions,preliminarily define the review behavior.At the same time,according to specific circumstances,as far as possible,duty of care shall be fully paid to avoid the situation in which the court may identify it as gross negligence,thereby bereaving the bill right.This requires that the identification on gross negligence of the bill shall not only meet the criteria for judging gross negligence in civil law theory,but also strictly apply to the requirement on bill non-causation.