Is the consequence of the loss of the bill serious or not, and how should it be remedied? The loss of bills is a rather troublesome thing. No one wants to see such a thing happen, but once it happens, there is no need to panic, and you need to take active measures to avoid unnecessary trouble and loss. Today, the editor of the
bank acceptance bill
discount service platform will tell you whether the consequences of the loss of bills are serious or not, and how to remedy the problem. Let's first popularize the concept of loss of bills, and then explain in detail the consequences and remedies of loss of bills. Interested friends may wish to read it patiently.
1. The concept of loss of bills Loss of
bills refers to the loss of possession of bills by the bearer without the intention of abandoning them. The loss of bills can be divided into the following two situations: one is absolute loss; the other is relative loss. The former is also called the lost bill, which means that the bill has no longer maintained its original material form, such as being damaged, torn, burned, rotten, etc.; the latter is also called the lost bill, which means that although the bill is physically intact, It is separated from the actual possession of the original bearer, resulting in the person unable to use the bill normally and exercise the bill's rights, such as the bearer accidentally loses the bill or has it stolen. Regarding whether the loss of possession of the instrument includes the loss of indirect possession, we think it should be included. The reason is: direct possession refers to the state in which the instrument is actually possessed; indirect possession refers to the state in which the original bearer does not actually possess the instrument through entrusted collection or pledge endorsement. In the case of indirect possession, if the indirect occupier, namely the original holder of the bill, is not given the right, after the bill is lost, it will suffer losses. Therefore, the right of indirect possessor should be given, so as to fully define the concept of loss of instrument.
Bills are fully negotiable securities, and the rights of the bills cannot be separated from the bills that embody the rights at all times. The holder of the bills must possess the bills when exercising the rights of the bills; and the bills are presented securities, and the exercise of the rights of the bills must first prompt the bills. Therefore, possession of bills is the premise and basis for exercising the rights of bills. The loss of bills directly affects the realization of bill rights.
(2) Whether the legal consequences of the loss of negotiable instruments are serious or not
The legal consequences of the loss of bills vary according to the situation of absolute loss and relative loss of bills. The absolute loss of bills makes the material form of the exercise of bill rights lack, and there is even no possibility of being falsely claimed or acquired in good faith by others; while the relative loss of bills, there is the risk of bills being falsely claimed by others or acquired in good faith. But bills are not like banknotes and stamps, and the person who loses the bill does not lose the right to the bill of course. In order to restore the interests of the holder of the right of the negotiable instrument damaged by the loss of the negotiable instrument, and to protect the safety of the negotiable instrument transaction and the rights of the acquirer in good faith, the negotiable instrument laws of various countries have stipulated the relief system for the loss of the negotiable instrument, that is, the loser of the negotiable instrument shall, in accordance with the relevant provisions of the negotiable instrument law, The rights on the ticket can still be restored after a certain procedure.
2. Remedies for
loss of negotiable instruments Regarding the remedies for loss of negotiable instruments, the stipulations of negotiable instruments laws vary from country to country. Civil law countries mostly use public notice procedures, while common law countries mostly use litigation procedures. Article 15 of my country's "Negotiable Instruments Law" stipulates: "If a negotiable instrument is lost, the loser may promptly notify the payer of the negotiable instrument to report the loss and stop payment... The loser of the negotiable instrument shall report the loss and stop payment within 3 days, or after the negotiable instrument is lost, he may, in accordance with the law, report the loss and stop payment within 3 days. Apply to the people's court for public notice, or file a lawsuit in the people's court." It can be seen that my country's legislation has adopted an open attitude towards the relief system for the loss of bills. Stop payment, a method with Chinese characteristics.
(1) Loss reporting and stopping payment system
Loss reporting and stopping payment is a remedy for the loss of negotiable instruments in China's traditional commercial practice. According to this custom, after losing the bill, the person who has lost the bill can issue a certificate to request the invoice bank to report the loss and stop payment, and publish an advertisement in an authoritative newspaper to declare that the bill is invalid, and at the same time, it should be filed with the local official office. After 100 days, if there is no dispute, the loser can request payment again. [1] From this, we can define loss reporting and stop payment, which refers to the remedies in which the loser informs the payer of the bill of loss and asks the payer to stop paying the bill. In nature, reporting loss and stopping payment is only a temporary remedy, which can only prevent the amount of the bill from being falsely claimed in a short period of time, cannot resume the exercise of the bill's rights, and cannot prevent the transfer of the bill's rights and the acquisition in good faith.
(1) Scope of application of loss reporting and stop payment
Loss reporting does not apply to all bills. Article 15 Paragraph 1 of my country's "Negotiable Instruments Law" stipulates: "If a negotiable instrument is lost, the loser may notify the payer of the instrument in time to report the loss and stop payment, except for instruments that do not record the payer or the payer and its agent payer cannot be identified. .” The academic community believes that this provision is inappropriate. If the payer is not recorded, in the draft and check, according to the provisions of Article 22 and Article 85 of the "Instrument Law", the draft and the check without the payer are invalid instruments, and there is no problem of reporting the loss. In a promissory note, the drawer is the payer. According to Article 76 of the "Negotiable Instruments Law", this promissory note is also an invalid instrument. In the case where the bills of the payer and its agent payer cannot be determined, although it is not invalid, it is impossible to determine who should be notified of the stop payment, and naturally it is not applicable to the bills that report the loss and stop payment.
According to Article 48 of the "Measures for Payment and Settlement" of the People's Bank of China: "The accepted commercial drafts, checks, bank drafts filled with the word 'cash' and the agent payer, and banker's checks filled with the word 'cash' can be lost. The loser shall notify the payer or the agent payer to report the loss and stop payment." The bills that cannot be reported as lost include bank drafts without the word "cash" and the agent payer, and cashier's checks without the word "cash", etc. .
(2) Procedures
to report loss and stop payment If the loser needs to report loss and stop payment, in accordance with the provisions of Article 49 of the "Payment and Settlement Measures", he should fill in the loss report and stop payment notice and sign it. The following matters shall be stated on the notice: ①The time, place and reason for the loss of the bill; ②The type, number, amount, date of issuance, date of payment, name of the payer, and name of the payee; ③The person who reports the loss and stops payment name, place of business or address, and contact information. After the payer or the agent payer receives the notice of loss reporting and cessation of payment, and finds out that the loss-reported bill has not been paid, it shall immediately suspend payment.
(3) The effect of reporting loss and stopping payment
Loss reporting is only a temporary remedy. Its effectiveness is reflected in: ① Guarantee. It can prevent the bill amount from being falsely claimed. ② It can provide guarantee for the restoration of the enjoyment and exercise of the rights of the bills or the possession of the bills. It can be combined with other statutory measures, such as public notices and lawsuits to confirm rights, to effectively play a relief role. For the payer or the agent payer, if the bill has not been paid, the payment shall not be made within the validity period (within 12 days from the date when the payer or the agent payer receives the notice of loss reporting and stop payment[2]), otherwise it shall be liable for wrong payment. . However, if the payer or the agent payer has already paid the bearer before receiving the notice of loss reporting and stop payment, it is no longer liable. It should be pointed out that reporting loss and stopping payment is not a necessary procedure for applying for public notice or filing a lawsuit. The loser may directly apply to the people's court for public notice or file a lawsuit without going through the procedure of reporting the loss and stopping the payment.
(2) Public notice system
Public notice means that the people's court informs and urges the interested parties to declare their rights to the people's court within the specified time limit based on the application of the loser of the vote, and the people's court will make an announcement according to law Remedies for judgments that the instrument is void. Most civil law countries adopt this system.
(1) The scope of application of public reminders
According to Article 193 of the Civil Procedure Law: the negotiable instruments that can be endorsed and transferred are lost, and the person who loses the votes may apply to the court for publicity of the reminders. In legal practice, the negotiable instruments that cannot be endorsed and transferred include: according to Article 36 of the "Negotiable Instruments Law", a negotiable instrument that is refused acceptance, refused to pay, or exceeds the payment presentation period shall not be endorsed and transferred; according to Article 27 of the "Payment and Settlement Measures" , bank drafts, cashier's checks and cheques for cash withdrawals marked with the word "cash" shall not be endorsed and transferred, therefore, they are not applicable to public notice procedures.
(2) Procedure for public notice
"Since the public notice is an ad hoc system to determine the rights of the holder of the negotiable instrument without going through legal procedures, it is essentially a non-litigation event."[3] my country's Civil Procedure Law stipulates the specific procedures for public notice, which are divided into the following A few steps: ① The loser applies for a public notice. The "Civil Procedure Law" stipulates that the person who fails to pay the bill shall file a written application for public notice to the basic court of the place where the bill is paid. ②The court makes an announcement. The court shall notify the payer or the payer on behalf of the payer to stop the payment on the day of accepting the application for public notice, and issue an announcement within 3 days from the date of accepting the public notice to urge interested parties to declare their rights. ③ When no one declares the rights. When no one declares, the declarant may request the court to make an ex-rights judgment. ④ When someone declares. At this time, the court should rule to terminate the public notice procedure, notify the applicant and the payer, and the interested party should present the bill and notify the public notice applicant to check the bill within the specified period. Reject the declaration of the interested party. ⑤Exemption judgment. The court makes an ex-rights judgment, that is, the negotiable instrument is declared invalid by judgment. A bill that has been declared invalid is separated from the bill's rights, and no bearer can claim any more rights on the bill.
(3) Effectiveness of
public notices Public notices can effectively prevent the false claim of the bill price and the bona fide acquisition of bill rights; it can restore bill rights; it can identify interested parties and prepare for confirmation lawsuits.
1. The concept of loss of bills Loss of
bills refers to the loss of possession of bills by the bearer without the intention of abandoning them. The loss of bills can be divided into the following two situations: one is absolute loss; the other is relative loss. The former is also called the lost bill, which means that the bill has no longer maintained its original material form, such as being damaged, torn, burned, rotten, etc.; the latter is also called the lost bill, which means that although the bill is physically intact, It is separated from the actual possession of the original bearer, resulting in the person unable to use the bill normally and exercise the bill's rights, such as the bearer accidentally loses the bill or has it stolen. Regarding whether the loss of possession of the instrument includes the loss of indirect possession, we think it should be included. The reason is: direct possession refers to the state in which the instrument is actually possessed; indirect possession refers to the state in which the original bearer does not actually possess the instrument through entrusted collection or pledge endorsement. In the case of indirect possession, if the indirect occupier, namely the original holder of the bill, is not given the right, after the bill is lost, it will suffer losses. Therefore, the right of indirect possessor should be given, so as to fully define the concept of loss of instrument.
Bills are fully negotiable securities, and the rights of the bills cannot be separated from the bills that embody the rights at all times. The holder of the bills must possess the bills when exercising the rights of the bills; and the bills are presented securities, and the exercise of the rights of the bills must first prompt the bills. Therefore, possession of bills is the premise and basis for exercising the rights of bills. The loss of bills directly affects the realization of bill rights.
(2) Whether the legal consequences of the loss of negotiable instruments are serious or not
The legal consequences of the loss of bills vary according to the situation of absolute loss and relative loss of bills. The absolute loss of bills makes the material form of the exercise of bill rights lack, and there is even no possibility of being falsely claimed or acquired in good faith by others; while the relative loss of bills, there is the risk of bills being falsely claimed by others or acquired in good faith. But bills are not like banknotes and stamps, and the person who loses the bill does not lose the right to the bill of course. In order to restore the interests of the holder of the right of the negotiable instrument damaged by the loss of the negotiable instrument, and to protect the safety of the negotiable instrument transaction and the rights of the acquirer in good faith, the negotiable instrument laws of various countries have stipulated the relief system for the loss of the negotiable instrument, that is, the loser of the negotiable instrument shall, in accordance with the relevant provisions of the negotiable instrument law, The rights on the ticket can still be restored after a certain procedure.
2. Remedies for
loss of negotiable instruments Regarding the remedies for loss of negotiable instruments, the stipulations of negotiable instruments laws vary from country to country. Civil law countries mostly use public notice procedures, while common law countries mostly use litigation procedures. Article 15 of my country's "Negotiable Instruments Law" stipulates: "If a negotiable instrument is lost, the loser may promptly notify the payer of the negotiable instrument to report the loss and stop payment... The loser of the negotiable instrument shall report the loss and stop payment within 3 days, or after the negotiable instrument is lost, he may, in accordance with the law, report the loss and stop payment within 3 days. Apply to the people's court for public notice, or file a lawsuit in the people's court." It can be seen that my country's legislation has adopted an open attitude towards the relief system for the loss of bills. Stop payment, a method with Chinese characteristics.
(1) Loss reporting and stopping payment system
Loss reporting and stopping payment is a remedy for the loss of negotiable instruments in China's traditional commercial practice. According to this custom, after losing the bill, the person who has lost the bill can issue a certificate to request the invoice bank to report the loss and stop payment, and publish an advertisement in an authoritative newspaper to declare that the bill is invalid, and at the same time, it should be filed with the local official office. After 100 days, if there is no dispute, the loser can request payment again. [1] From this, we can define loss reporting and stop payment, which refers to the remedies in which the loser informs the payer of the bill of loss and asks the payer to stop paying the bill. In nature, reporting loss and stopping payment is only a temporary remedy, which can only prevent the amount of the bill from being falsely claimed in a short period of time, cannot resume the exercise of the bill's rights, and cannot prevent the transfer of the bill's rights and the acquisition in good faith.
(1) Scope of application of loss reporting and stop payment
Loss reporting does not apply to all bills. Article 15 Paragraph 1 of my country's "Negotiable Instruments Law" stipulates: "If a negotiable instrument is lost, the loser may notify the payer of the instrument in time to report the loss and stop payment, except for instruments that do not record the payer or the payer and its agent payer cannot be identified. .” The academic community believes that this provision is inappropriate. If the payer is not recorded, in the draft and check, according to the provisions of Article 22 and Article 85 of the "Instrument Law", the draft and the check without the payer are invalid instruments, and there is no problem of reporting the loss. In a promissory note, the drawer is the payer. According to Article 76 of the "Negotiable Instruments Law", this promissory note is also an invalid instrument. In the case where the bills of the payer and its agent payer cannot be determined, although it is not invalid, it is impossible to determine who should be notified of the stop payment, and naturally it is not applicable to the bills that report the loss and stop payment.
According to Article 48 of the "Measures for Payment and Settlement" of the People's Bank of China: "The accepted commercial drafts, checks, bank drafts filled with the word 'cash' and the agent payer, and banker's checks filled with the word 'cash' can be lost. The loser shall notify the payer or the agent payer to report the loss and stop payment." The bills that cannot be reported as lost include bank drafts without the word "cash" and the agent payer, and cashier's checks without the word "cash", etc. .
(2) Procedures
to report loss and stop payment If the loser needs to report loss and stop payment, in accordance with the provisions of Article 49 of the "Payment and Settlement Measures", he should fill in the loss report and stop payment notice and sign it. The following matters shall be stated on the notice: ①The time, place and reason for the loss of the bill; ②The type, number, amount, date of issuance, date of payment, name of the payer, and name of the payee; ③The person who reports the loss and stops payment name, place of business or address, and contact information. After the payer or the agent payer receives the notice of loss reporting and cessation of payment, and finds out that the loss-reported bill has not been paid, it shall immediately suspend payment.
(3) The effect of reporting loss and stopping payment
Loss reporting is only a temporary remedy. Its effectiveness is reflected in: ① Guarantee. It can prevent the bill amount from being falsely claimed. ② It can provide guarantee for the restoration of the enjoyment and exercise of the rights of the bills or the possession of the bills. It can be combined with other statutory measures, such as public notices and lawsuits to confirm rights, to effectively play a relief role. For the payer or the agent payer, if the bill has not been paid, the payment shall not be made within the validity period (within 12 days from the date when the payer or the agent payer receives the notice of loss reporting and stop payment[2]), otherwise it shall be liable for wrong payment. . However, if the payer or the agent payer has already paid the bearer before receiving the notice of loss reporting and stop payment, it is no longer liable. It should be pointed out that reporting loss and stopping payment is not a necessary procedure for applying for public notice or filing a lawsuit. The loser may directly apply to the people's court for public notice or file a lawsuit without going through the procedure of reporting the loss and stopping the payment.
(2) Public notice system
Public notice means that the people's court informs and urges the interested parties to declare their rights to the people's court within the specified time limit based on the application of the loser of the vote, and the people's court will make an announcement according to law Remedies for judgments that the instrument is void. Most civil law countries adopt this system.
(1) The scope of application of public reminders
According to Article 193 of the Civil Procedure Law: the negotiable instruments that can be endorsed and transferred are lost, and the person who loses the votes may apply to the court for publicity of the reminders. In legal practice, the negotiable instruments that cannot be endorsed and transferred include: according to Article 36 of the "Negotiable Instruments Law", a negotiable instrument that is refused acceptance, refused to pay, or exceeds the payment presentation period shall not be endorsed and transferred; according to Article 27 of the "Payment and Settlement Measures" , bank drafts, cashier's checks and cheques for cash withdrawals marked with the word "cash" shall not be endorsed and transferred, therefore, they are not applicable to public notice procedures.
(2) Procedure for public notice
"Since the public notice is an ad hoc system to determine the rights of the holder of the negotiable instrument without going through legal procedures, it is essentially a non-litigation event."[3] my country's Civil Procedure Law stipulates the specific procedures for public notice, which are divided into the following A few steps: ① The loser applies for a public notice. The "Civil Procedure Law" stipulates that the person who fails to pay the bill shall file a written application for public notice to the basic court of the place where the bill is paid. ②The court makes an announcement. The court shall notify the payer or the payer on behalf of the payer to stop the payment on the day of accepting the application for public notice, and issue an announcement within 3 days from the date of accepting the public notice to urge interested parties to declare their rights. ③ When no one declares the rights. When no one declares, the declarant may request the court to make an ex-rights judgment. ④ When someone declares. At this time, the court should rule to terminate the public notice procedure, notify the applicant and the payer, and the interested party should present the bill and notify the public notice applicant to check the bill within the specified period. Reject the declaration of the interested party. ⑤Exemption judgment. The court makes an ex-rights judgment, that is, the negotiable instrument is declared invalid by judgment. A bill that has been declared invalid is separated from the bill's rights, and no bearer can claim any more rights on the bill.
(3) Effectiveness of
public notices Public notices can effectively prevent the false claim of the bill price and the bona fide acquisition of bill rights; it can restore bill rights; it can identify interested parties and prepare for confirmation lawsuits.