Analysis On The Risk Sharing Of The Parties In The Bill Endorsement Forgery

Bill,as the father of negotiable securities and commercial currency,is very important in commercial activities.With the development of economy,the forgery of bill is increasing gradually,especially the forgery of endorsement.This has caused serious adverse effects to the financial and economic order.However,after the forgery of endorsement occurs,how should the subject of each legal relationship bear the risk,because of the forgery person's escape or no property ability? Based on the comparative analysis of the theories of the two major legal systems and the regulations of our country's negotiable instruments law,this paper puts forward some suggestions for sharing the risk of forgery of endorsements.The first part of the thesis begins with the controversial problem of risk sharing between the parties in the forgery of bill endorsement.First of all,in the forgery of bill endorsement,between the forged person and the bona fide holder,the traditional theory of negotiable instrument law focuses on protecting the interests of the real rights holder.With the development of economy,there are differences between the two major legal systems,and the civil law system is different from the Anglo-American legal system.The main manifestation is that the civil law system pays more attention to the circulation function of the bill,so the emphasis of protection is transferred to the holder of the bona fide bill.Secondly,with regard to the obligation to examine the payer,the civil law system stipulates that the payer only examines whether the endorsement is formally continuous and that the existence of forgery of the endorsement does not affect the holder's right to obtain the instrument in good faith.The payer shall be exempt from paying for his or her payment;The Anglo-American legal system stipulates that the existence of forged endorsement leads to the interruption of the endorsement chain,and the payer must substantially examine whether the endorsement is continuous or not,even if the bona fide payment is not identified,the loss is selfconceited if the forged endorsement is not identified.There is a conflict between the relevant provisions of the negotiable instruments law in our country.The judicial interpretation of the negotiable instrument law expands the original formal examination obligation of the payer into the substantive examining obligation,which leads to confusion in the application of the law in practice.The second part analyzes the conflict of rights and risk between forged endorser and bona fide bearer.First of all,with regard to the risk-taking of the forgery person,generally speaking,the forgery person does not sign the bill and he does not bear the bill liability,but,in practice,there are reasons for the imputable liability,and therefore,the circumstances in which the forgery person bears the risk is: The forger indorsed the bill in his or her name.The United States,Japan and other countries believe that forged endorsements can be recognized,while the United Kingdom is the opposite.There are no relevant regulations in our country.The author agrees with the viewpoint that forgery of endorsement only damage the interests of the forger can be recognized.As to the nature of confession,the author agrees that the act of confession is a kind of exercise of positive right of formation,and has the nature of supplementary authorization.With regard to the retrospective effect of recognition,the author agrees with the view that the retroactive effect is determined on the basis of the will of the forger,that is,if the forged person is willing to exempt the forger from other legal responsibilities,it has retroactive effect.As for the impact of recognition,mainly in the Anglo-American legal system of instruments,it makes the bona fide holder and payer reduce the loss.As to the evidence of the forger,it is related to the actual risk of the forger.If the forged person claims that the signature is imitated,it needs to prove that the signature on the bill is different from its true signature.If it claims the signature has been stolen,it needs to prove that the signature on the bill was stamped after the theft.If it claims that the signature has been abused,it needs to prove that the bearer is malicious.Secondly,with regard to the risk-taking of the bearer,the academic circles believe that the risk of the holder who has forged endorsement is that the holder may refuse to pay when the bill is presented for payment,and if there is no other real signatory on the bill,the holder may not be able to pursue it.The civil law system only stipulates the conditions for the legal holder to be established,that is,the legal holder can be proved by a continuous endorsement in form,while the Anglo-American legal system stipulates that the holder of the bill does not enjoy the right of the bill after the forged endorsement.There are different contradictory stipulations in our country,that is,"the latter hand should be responsible for the authenticity of its direct prior endorsement" and "the holder's right to prove his bill of exchange by endorsement of the continuity".As a result,the holder of the ticket directly behind the forger will bear the risk.At the same time,the original holder before falsifying endorsement loses the bill,and when the payer makes due payment to the prompt payer,he shall bear the risk loss separately.According to the relevant provisions of civil law system and Anglo-American legal system,the indorsed person who transferred the instrument directly from the forger claimed the civil compensation to the forger.The system of "bona fide bearer" has been adopted in our country,which can be pursued by the holder to the drawer.The third part of the thesis analyzes the payer's risk and responsibility-taking.First of all,according to the relevant regulations,the payer's risk is that the payer has malicious or gross negligence at the time of payment,and the payer has not fulfilled the obligation of examination.The review obligation of the payer in the civil law system is formal review,while the Anglo-American legal system is the substantive examination obligation.China's negotiable instruments law and judicial interpretation of the provisions of formal review and substantive examination,there is conflict.Secondly,there is a time limit for the substantive review endorsement of the payer.The law stipulates that the payer usually needs to complete the payment on the same day,and the formal review can be fully completed.However,it is very difficult for the instrument with numerous endorsements to do the substantive review.At the same time,according to the different provisions of the two major legal systems,the defense limitation of the payer is that the endorsement cannot continuously refuse the bill holder's request for payment in good faith,and the interruption of endorsement cannot refuse the original owner's request for payment again.Finally,if the payer wants not to bear the risk,he needs to prove that,first,the falsification of endorsement results in the liability of the false payment rests with the forged person,and second,the payer fulfills the obligation of examination when the payment is made.If the proof cannot be proved,the risk is to be borne.The fourth part of the thesis puts forward the idea of risk sharing in endorsement forgery.In order to balance the interests of the parties,the risk of forgery should be shared.First,the forgery indorser is allowed to chase after the forgery;secondly,the forgery liability is increased;and finally,the payer's defence is added.