【作者】 刘琳琳；

【导师】 赵新华；

【作者基本信息】 吉林大学 ， 民商法学， 2009， 博士

【摘要】 现代经济社会中有价证券的利用十分广泛,但是纵观我国民商法理论却少有有价证券理论的基础性研究,学者们仅仅停留在对某一个证券进行个别研究的现状上。这样的研究现状不能指导实践中形形色色的有价证券活动,有价证券理论研究是民商法理论中亟待解决的一项重要课题。有鉴于此,本文首先对有价证券理论进行研究,经研究发现,我国学者之所以很少涉足这一领域是因为有价证券的种类繁多,其法律性质差别很大,若想研究其共同之处,归纳出统一的概念、内涵实属不易。因此本文仅选取一组特殊的有价证券即商业证券,其中涵盖票据、提单、仓单三种证券,以商业证券权利为对象展开讨论。先对商业证券权利的本体进行研究,分析证券权利属性,界定为债权属性,明确其流通性质与信用性质,然后分别对商业证券权利的变动与商业证券权利的保护进行研究。证券权利变动从权利的发生、转移、行使、消灭,研究每一个环节中突显的法律问题。证券权利保护从权利的偿还保护和丧失保护,研究每一种保护制度的理论问题,并探讨商业证券权利保护的法制完善,尤其在电子商务影响之下,商业证券无纸化对有价证券理论的冲击与继承,指出有价证券理论在权利无纸化的今天仍然具有重要的理论研究价值。更多还原

【Abstract】 Valuable papers are widely used in modern society, yet basic research on the theory of valuable papers is rare in our theory of civil and commercial law in which scholars just focus on a single instrument. For example, securities law focuses on the investment nature of stocks and bonds, maritime law focuses on the nature of bills of lading from the perspective of international sale and transport of goods, contract law focuses on the nature of warehouse receipts in warehousing contracts while as the“father”of valuable papers, the research of negotiable instruments law is self-systematic…Obviously, such scattered research can not provide guidance for the various activities in practice and the theory of valuable papers is an important topic that is urgent to develop among the research in civil and commercial law. This thesis deals with the theory of valuable papers firstly. We can see that it is the diversity of valuable papers and the large difference of their nature that cause the limit research of our country in this area and it is very difficult to find their common character and summarize a unified concept. So this thesis just select a special group of valuable papers, that is, instruments of trade which include negotiable instruments, warehouse receipts, and bills of lading, and make the rights of instruments of trade as the main line to study their common legal nature and institution.This thesis brings forth new ideas as the following four aspects: firstly, based on combing complex theories of valuable papers, clarifying their path of development and generalizing their core ideas, the thesis makes clear the correct way of understanding and defines the defination of valuable papers. Meanwhile, it analyzes the content of present institutions, shows the differences between institutions and presents the idea of unifying expressions of valuable papers. Secondly, by legal analyzing valuable papers and exploring their theoretical basis the thesis makes some pure civil and commercial theoretical debates clear and clarifies the research path of theory of valuable papers. Thirdly, taking negotiable instruments, warehouse receipts and bills of lading as subjects the thesis defines instruments of trade, demonstrates their nature of creditor’s rights and presents its nature as creditor’s rights with characteristics of real right. Fourthly, centering on issues of change and protection of instruments of trade the thesis aims to find out the common principles of institutions of warehouse receipts and bills of lading so as to improve legal institutions of warehouse receipts and bills of lading on the basis of rules of negotiable instruments.The whole thesis is divides into four chapters as follows:Chapter one is about the foundmental research on theories of valuable papers. Firstly, it explains the defination of valuable papers. By studying the emergence of experssion of valuable papers, analyzing their structure and function and deducing their disdincts mainly based on German doctrines, it concludes: it is defination in narrow sense to analyze the nature of valuable papers in the sense of circulation, while it is defination in broad sense to analyze in the sense of exertion of rights based on holding securities. On the basis of present code of Japan it analyizes the pluralism of expressions of valuable papers and argues that we should unify expressions of valuable papers in our future institutions. It also distinguishes the defination of valuable papers with similar secuities as proof securities, impunity securities and gold certificates and clarify the essential distincts and vague bounds within them. Sencondly, it makes some typed analysis so as to easily take the subject and analyze with construction, exploring its legal sense. By dividing three standards as type of awarding right of securities, type of appointing right holder of securities and type of economy function of securities the thesis shows how to use expressions of valuable papers correctly under these standards and makes some concrete analysis on the nature of securities. Finally, it studies the legal basis of valuable papers. Through involvement of right belonging and securities and that of right being and securities, it deduces the idea of involvement of rights of valuable papers and securities. Through mixing negotiable instrument with jurisprudence of interests, it clarifies interests protection in the circulation of valuable papers. From the game of liberty of contract and legality, it concludes that categories of valuable papers with characteristics of cretidor’s rights can be designed freely and the rest must be legal.Chapter two is about the ontology of instruments of trade. Firstly, it defines contents of instruments of trade. Through analysis of traditional expressions of instruments of trade in other countries, it pretents the scope of instruments of trade which includes security of money represented as negotiable instruments and security of article represented as warehouse receipts and bills of lading. Their similarity is that they are securities issued to specific person on the basis of trade of articles. So instruments of trade can be difined as valuable papers issued to specific person individually in different time with different conditions on the basis of trade of certain articles. Based on theories of valuable papers, the thesis aims to abstract theories of security of money and articles, showing their similarities of valuable papers to develop fairly completely insitution of security. It then analyzes categories of instruments of trade and rationally explores the debate of doctrine of real rights and that of creditor’s rights. It supports the latter and further shows characteristics of real rights and develops the new idea of security of creditor’s rights with nature of real rights. Secondly, it studies characteristics of right of instruments of trade. It argues that negotiable instruments, bills of lading and warehouse receipts are all securities with character as setting rights and denies characters as defining rights of bills of lading and warehouse receipts. It affirms negotiable instruments as security without cause but denies those who think bills of lading and warehouse receipts as security without cause. It also argues that negotiable instruments, bills of lading and warehouse receipts are all with literary content and clarify literar content cannot lead to the character that is of no cause and explains why security of articles is simultaneously with cause and literary content. It argues that negotiable instruments, bills of lading and warehouse receipts are all with form. Negotiable instruments are with strict form, but the character of form of security of articles has experienced a history of cases and doctrines from being strict to moderate.Chapter three is about the change of right of instruments of trade. Firstly it is about issue problems of instruments of trade. It defines nature of issue of instruments of trade as unilateral legal action, and use of portfolio theory that the two-stage, considers the securities acts including the debt burden acts and the transfer right acts,while establishes the value of the appearance of the theory. Signature of issue of instruments of trade is about theory of manifestation of intention. For instruments of trade are issued to specific person, its manifestation of intention applies expressionism. Proprietary right of security paper and awarding right of security constitute theory of duality of instruments of trade. That the two sorts of right are transferd simultaneously when the instruments of trade are transferred shows holding is necessary for transfer of security rights. The application of acquisition in good faith and defense rule during transfer of security rights can better protect the interest of security holder. The exertion of security rights is about the qualification of right holder. We should draw lessons from form qualification of continuous holders of endorsement in the law of negotiable instrument to define the right holder of security of articles. Meanwhile, we should set up rules of right exertion of instruments of trade, which prompted the securities and foreclosure .Chapter four is about protection of right of instruments of trade. Firstly, right of instruments of trade disappears because of reimbursement. The debtor should get rid of the security relationship according to the way mentioned on securities, or the effect of getting rid of the debt fails and foreclosure should be done. If foreclosure has not been done, it is much possible the third party asks to pay. When the debtor pays to those who have formal qualifications, no matter he/she is the real right holder payment, equals to exemption. But to the extent of exemption we should understand the meaning of being on purpose and gross negligence. In addition to analysis the security of article whether have recourse.According to rule of security loss in civil law, common law and international treaty of instruments, we can turn to strategies in law.If acquisition in good faith happens after invalidating judgement, it is controversial for whom to protect. For counting on protecting dynamic safety of securities in circulation, the third party in good faith should be protected. Besides, when the security is lost even though secutity of articles has not gone through procedure of public summons for exhortation and invalidating judgement, securities issuers also can be asked to reissue. Finally, the right to the protection of the securities business to improve the legal system.Valuable papers are originally used to simplify transfer procedure of rights and strengthen effects of rights transfer. With the development of economy valuable papers get fast circulation. But in the end of 1960’s the crisis of paper operation in wallstreet heavily hurt and rebuild securities industry. Paper of valuable papers is abolished and trade of rights preceeds according to books of account, which means valuable papers are paperless. After that securities donnot exist and scholars doubt about the meaning of studying theories of rights security. The author deems that even if rigths get paperless it dose not mean theories of valuable papers should be completely deserted. At least bearer securities cannot be paperless, and theories of valuable papers will still work. Presently in our country construction of legal institution of rights security is more important than that of rights paperless, securities for the protection of the interests of rights, so it is advocated uniform law of valuable papers should be set up.更多还原