票据丧失救济制度研究
发布时间：2018-10-13 15:03
【摘要】：对失票人作出票据法意义上的规定,必须首先明确对其作出规定的意义,在此前提下,去确立界定失票人的标准。在票据法意义上对失票人作出规定,是为了解决公示催告申请人和普通诉讼原告的适格问题,标准包括:票据丧失的事实对其有无风险和有否法律规定的救济手段可以援用。挂失止付,作为票据丧失的临时救济手段,其制度设计应充分体现其时间规定性;对挂失止付的学理研究和制度设计,都不应该过多关注适用挂失止付的票据的品格;空白票据、未到期票据、超过付款提示期限的票据丧失后,都应该可以办理挂失止付。学者们对《民事诉讼法》第193条的理解,值得商榷,“按照规定可以背书转让的票据”不是对公示催告适用范围的规定;除权判决作出前,应侧重保障票据的流通;除权判决作出后,应侧重保护失票人的利益;失票人获得除权判决后,可以据以行使追索权,但要负举证责任。司法解释允许失票人在提起诉讼后,请求出票人补发新的票据,这一规定欠缺配套制度支撑;失票人(原告)提供的担保,不以财产担保为必要,以被告认可为已足。公示催告和普通诉讼可以衔接起来,以发挥我国票据丧失救济制度的整体优势。
[Abstract]:It is necessary to make clear the meaning of the provisions on the lost ticket in the sense of the bill law, and to establish the standard of defining the lost ticket under this premise. In the sense of negotiable instrument law, the purpose of the stipulation on the lost ticket is to solve the problem of the public appeal to the applicant and the plaintiff in the ordinary lawsuit. The standard includes whether the fact of the loss of the bill has any risk to it and whether there are any remedies provided by the law. As the temporary relief means of the loss of the bill, the system design should fully reflect its time stipulation, the academic research and the system design of the report loss stop payment should not pay too much attention to the character of the bill which is suitable for the report loss stop payment; Blank notes, unmatured notes, bills beyond the time limit for payment should be lost, should be able to report loss stop payment. The scholars' understanding of Article 193 of the Civil procedure Law is debatable that "negotiable instrument which can be endorsed according to the regulations" is not a provision on the scope of application of the public notice, and that before the judgment is made, emphasis should be placed on the protection of the circulation of the bill. After the judgment of the right of exclusion is made, the interests of the person who lost the ticket should be protected, and the person who has obtained the judgment of the right of exclusion may exercise the right of recourse on the basis of the judgment, but the burden of proof should be borne. Judicial interpretation allows the drawee to ask the drawer to issue a new bill after filing a lawsuit. This provision lacks the supporting system; the guarantee provided by the drawee (plaintiff) is not necessary for the property security, but is sufficient for the defendant to approve it. Public notice and ordinary litigation can be linked up in order to give play to the overall advantages of our country's bill loss relief system.
【学位授予单位】：吉林大学
【学位级别】：硕士
【学位授予年份】：2006
【分类号】：D922.287
本文编号：2269042
[Abstract]:It is necessary to make clear the meaning of the provisions on the lost ticket in the sense of the bill law, and to establish the standard of defining the lost ticket under this premise. In the sense of negotiable instrument law, the purpose of the stipulation on the lost ticket is to solve the problem of the public appeal to the applicant and the plaintiff in the ordinary lawsuit. The standard includes whether the fact of the loss of the bill has any risk to it and whether there are any remedies provided by the law. As the temporary relief means of the loss of the bill, the system design should fully reflect its time stipulation, the academic research and the system design of the report loss stop payment should not pay too much attention to the character of the bill which is suitable for the report loss stop payment; Blank notes, unmatured notes, bills beyond the time limit for payment should be lost, should be able to report loss stop payment. The scholars' understanding of Article 193 of the Civil procedure Law is debatable that "negotiable instrument which can be endorsed according to the regulations" is not a provision on the scope of application of the public notice, and that before the judgment is made, emphasis should be placed on the protection of the circulation of the bill. After the judgment of the right of exclusion is made, the interests of the person who lost the ticket should be protected, and the person who has obtained the judgment of the right of exclusion may exercise the right of recourse on the basis of the judgment, but the burden of proof should be borne. Judicial interpretation allows the drawee to ask the drawer to issue a new bill after filing a lawsuit. This provision lacks the supporting system; the guarantee provided by the drawee (plaintiff) is not necessary for the property security, but is sufficient for the defendant to approve it. Public notice and ordinary litigation can be linked up in order to give play to the overall advantages of our country's bill loss relief system.
【学位授予单位】：吉林大学
【学位级别】：硕士
【学位授予年份】：2006
【分类号】：D922.287
【参考文献】
相关期刊论文 前4条
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