The Action of Negotiable Instrument theory- A focus on the issuing theory and the two-stage juridical act theory

• Main Authors: LI,MING-YAN, 李旻諺
• Other Authors: LI,Chin-hsien
• Format: Others
• Language: zh-TW
• Published: 2016
• Online Access: http://ndltd.ncl.edu.tw/handle/92yuy8

博士 === 輔仁大學 === 法律學系 === 104 === The action of negotiable instrument theory is the basis of the Negotiable Instruments Law. The Negotiable Instruments Law involves a broad spectrum of related issues; however, our country’s Negotiable Instruments Law does not directly specify the action of negotiable instruments. The controversy over the action of negotiable instrument theory originates from whether the action of negotiable instrument belongs to unilateral act or contract in legal acts, and there are many action of negotiable instrument theories which are the results of different opinions. Regardless of which act theory of negotiable instruments, there are points which can not be explained. However, the priorities are transaction security and circulation of negotiable instruments. Our country adopts the issuance theory in both theory and practice to maintain transaction security and circulation of negotiable instruments, supplemented by the right appearance theory for modification. In recent years, Japan’s academia of negotiable instruments proposed a two-stage juridical act theory which becomes a dominant opinion in Japan’s negotiable instruments theory. It states that the maintenance of transaction security and circulation of negotiable instruments should be based on the special provisions of the Negotiable Instrument Law (such as interruption of a person’s reason for defense and bona fide negotiable instrument transferee), rather than the right appearance theory with uncertain elements. The action of negotiable instrument is a legal act, and based on the legislation of combining civil and commercial laws, if there is no provision in the Negotiable Instrument Law, the relevant provisions on legal acts in the Civil Law shall apply. However negotiable instruments are completely securities, and for negotiable instruments transaction security and circulation are the priorities. Therefore, the action of negotiable instrument should have different characteristics and requirements from those of general legal acts, and under different action of negotiable instrument theories there should be different interpretations for the definition, characteristics and elements of action of negotiable instrument. This paper based on the issuance theory and the two-stage juridical act theory introduces the definition, characteristics and elements of action of negotiable instrument. Our country’s literature on the action of negotiable instrument theory is mostly about explanations of the theory, and mostly based on the issuance theory for the discussion of action of negotiable instrument related problems without using other action of negotiable instrument theories. Therefore, in the last two chapters the paper attempts to introduce the different processing modes under the issuance theory and the two-stage juridical act theory on action of negotiable instrument by others and negotiable instrument alteration, in a hope to gain a more in-depth understanding and application of the two different action of negotiable instrument theories.