【作者】 刘春阳；

【导师】 赵新华；

【作者基本信息】 吉林大学 ， 民商法学， 2008， 硕士

【摘要】 国际结算随国际贸易的产生而产生。国际贸易中,货物和金钱的相对给付是不可能由买卖双方当面完成的。卖方发货交单,买方凭单付款,以银行为中介,以票据为工具进行结算,是当代国际结算的基本特征。票据在国际结算中占据重要地位,国际结算中的票据在应用流通中产生的问题是国际结算领域的重要问题,关系着国际结算秩序的正常运转,及国际间资金的安全流通。本文对国际结算中的票据进行了全面分析研究,对国际结算票据特征、作用及应用以及法律适用问题进行阐述,同时分析了跟单信用证这种主要国际结算方式项下的汇票问题,并对国际结算中的电子票据问题做出建设性提议。更多还原

【Abstract】 Basic characteristics of modern international accounts settlement is non-cash settlement,i.e., in account-settlement people use other credit instruments other than money to perform the dealings, and these credit instruments’s role is taken mainly by notes.Therefore, the notes become the widely used credit instrument. In a certain sense, notes can be called the tool of international balance of accounts.Comparing with local notes, the notes in the international balance of accounts is of special traits in that they are not only adjusted and restrained by the law of notes, but also by international law of private property, international regulations of trade practice and international regulations of commercial practice...etc. Thus, my thesis will expound the practice of notes usage during the international account settlement on the basis of princples and provisions regulated by laws. Exactly because the wide usage and spread of the notes, the funds can thus be settled to the lagest extent in the global scope. The usage of notes help to increase the efficiency and security of international balance of account greatly, so the property, characteristics, function, law applicabability of the notes, and the concrete applyance in international account settlement and the modern electronic business related to notes are the initial problems in the study of international balance of accounts.This text mainly study the problems related to notes in the international balance of accounts, and the problems will be dealed with in four parts. And the text is aimed at trying to make the note activity go on wheel in the international balance of accounts.The main contents of the first part is the conspectus of the note problem in the international balance of accounts. Firstly, while being different in characteristics compared with common notes, the note in the international balance of accounts ,with its traits of international trade, its relation with foreign affairs, with the multiplied law regulaltions and adjustments, is in need of being analysed and reserched. The second point disscussed in the first part is the function and application of the note in the international balance of accounts. The function is that they can be utiliezed in payment, account settlement and circulation, and utilized as credit and funds, and therefore got an extensive application in the international balance of accounts. Usually in these international account settlements such as remit pay, receipt trusteeship and credit, the notes are needed.The third point is the comparison research of the international notes and local notes. This comparison is devided into three aspects: the comparision of note category and that of the note contents and the note practice, makeing the characteristics of the notes in the international balance of accounts much clearer.The main contents of the second part is about the applyance of the law of notes in the international balance of accounts. British scholar Morris ponts out: The bank draft,check and promissory note can cause law conflicts very easily in regard to their property. In international accounts settlement, several cross-border note practices would occur concerning the same note, which makes the law applyance of the notes a more trouble-causing problem.In this part, the characteristics of the law appliance of the notes in international accounts settlement will be analyzed fist. The characteristics include three aspects: complexity of the law appliance, the widespread adoption of partition system and the appliance of self-discipline principle, or the abandon of the above three. Secondly, the principles of law appliance of the notes will be discussed. And these principles will be analyzed in detail in seven aspects as follows, the ability of trading notes, the methods of trading notes, the validity of the note form, the rights and obligations of the party concerned, the time limit, prompt and resistance of note claim, the notice of payment refusal and remedy in the case of the loss of notes.The third part mainy study the problems concerning the bank drafts laws on the condition of single note of credit. Above all I will expound the law property of bank drafts with sigle note of credit. The note of credit and bank draft are concomitantly created, and this is why the existence of bank drafts at the very appearance of note of credit. And the reason why the bank drafts are still in use is that the notes have the function of credit, currency and accounts settlement. The credit notes are a kind of payment with conditions, and its premises is the correspondence of the single notes of credit. On the other hand, bank drafts is a payment without conditional demands, the only premises of payment is to meet the relevent provisions. In this sense, the conflict of the two is definit, because if the credit notes are banned, the bank notes with that credit will be invalid. Next problem to be analyzed is about the law problems concerning the bank notes with single note of credit in international balance of accounts, including the bank notes trading practice and the characteristics of the party concerned. Last but not least, I will analyze how to solve the conflicts with the bank notes with single credit note. The three conflicts concerned are that of written form demanded of the bank notes between international regulations of credit notes, the conflicts of the standard of bank notes and the criterion of credit notes and that of unconditional payment of the bank notes and conditional payment of the credit notes.The forth part is mainly about the researth on electronic notes in international balance of accounts. In the law of electronic notes in international accounts settlement there are two major ponits. One of them is how the law of traditional system can accept these electronic notes and thus make them legalized. The most critical difficulty includes the conflict between the electronic notes and regulated written form of the notes in each country together with the value of the overload data in the electronic notes.The former difficulty means whether the electronic notes can satisfy the provisions in each country, and thus be accepted and proteced by the laws. And the latter difficulty means whether the data in the notes can serve to be the legal proof accepted by court in each country when disputes concerning electronic notes occurs. The second major point is about the establishment of the electronic notes circulating mechanism. In order to carry out all the functions of the paper notes, the eletronic notes should circulate freely and then realize its commercial value in the circulation. If the electronic notes are to be circulated freely, it is important to realize the essence of the traditional circulation. So the demanded written form of the notes and handwritten signiture, both of which take paper as its medium, should not be enforced on the electronic notes. A new mechanism which functions in the electronic environment should be established according to the nature of circulation.Based on the above dissertation, the writer analyzed and clarified the important status of the notes used in the international account settlement in international trade, the advancement of its theory and practice. International settlement business will continue with the development of international trade. Modern communication equipments are widely applicable in trade, transport, banking, insurance and other industries, which will make the international settlement business progress towards the direction of non-paper notes, and will square the debt among countries more efficiently and accurately . In recent years, with the continuously expansile and embedded international economic exchanges, China used a variety of flexible settlement methods in international trade, in particular, the increasing use of notes bring more convenience for people. It requires us to use the legal systems and international practice of the world for reference, and improve Chinese Commercial Instrument Law system, reducing the note risk in international economic exchanges.更多还原