【作者】 郑宇；

【导师】 赵新华；

【作者基本信息】 吉林大学 ， 民商法学， 2007， 博士

【摘要】 在票据法学中,一般将关于票据抗辩分类的理论称为抗辩理论。一直以来,对于票据抗辩的种种讨论主要集中在抗辩理论上。对此,有的学者认为有必要对票据抗辩进行分类,而有的学者则主张个别具体地研究每一种抗辩。即使在肯定票据抗辩分类的学者中,对于如何进行分类,也存在不同的观点。因此,票据抗辩的分类问题是票据法学研究中的一项重要课题。有鉴于此,本文以票据抗辩的分类构成为中心,对抗辩理论的相关内容进行分析。首先,概括介绍票据抗辩的基本内容,明确其内涵、特性与理念等问题。此外,对票据抗辩分类的必要性进行分析。其次,对传统抗辩理论、新抗辩理论进行分析检讨,指出其问题之所在。再次,在票据行为二阶段说的基础上,以票据权利行使的前提要件为形式基准,以票据法的理念即保护交易安全和促进票据流通为实质基准,将票据抗辩划分为四类:物的抗辩、有效性抗辩、无权利抗辩与人的抗辩。最后,深入考察每一类抗辩,明确其各自的适用范围、法律效果以及被排除的理论根据等问题。更多还原

【Abstract】 In the area of negotiable instrument law, the theory about classification of counterplea of negotiable instrument is commonly named counterplea theory. The counterplea of negotiable instrument is an important system in negotiable instrument law. It not only has the complex contents and many problems, but also associates with many systems of negotiable instrument law and civil law. Therefore, the problem of how to classify the counterplea of negotiable instrument correctly and rationally is the focus task and a puzzle in the study of negotiable instrument law. This essay basing on the ideal of counterplea of negotiable instrument, studies on the counterplea theory of negotiable instrument starting with the association of counterplea theory and negotiable instrument theory and strives to realize the rational classification of negotiable instrument counterplea.The innovations of this essay embody in the three aspects: firstly, the essay adopts the thinking means of combining the counterplea theory and negotiable instrument theory. Basing on the negotiable instrument theory the author classifies the counterplea of negotiable instrument. It accords with the logic of theory structure. Secondly, the author takes on the counterplea of non-right as an independent kind of counterplea. Whereas the difference between the non-right counterplea and res counterplea, validity counterplea, personal counterplea on premise condition, legal structure and defence scope, this essay lists it separately and makes it appose with the other three kinds of counterplea. Thirdly, this essay definitudes the theoretic foundation of counterplea elimination. It not only definitudes the enginery area of all kinds of theories, but also systematizes the whole theory and system of negotiable instrument counterplea.This essay is divided to five chapters. The contents are as following:Chapter 1, survey of negotiable instrument counterplea. Firstly, the author parses the concept of negotiable instrument counterplea and thereby makes sure of the discussion basis. About the meanings of negotiable instrument counterplea, the scholars have the different viewpoints. After comparing and analyzing, the author considers that the negotiable instrument counterplea are the wholeness main content which the person who is claimed refuses the claim and the defence actions which are carried through according as the main content in the situation that the holder claim for the sum basing on the negotiable instrument. Secondly, the author establishes the particularity of negotiable instrument counterplea through comparing with the civil counterplea, that is, the negotiable instrument counterplea is provided with the universality and limitation. Hereinto, the limitation of negotiable instrument counterplea is the maximal difference between negotiable instrument counterplea and civil counterplea. Thirdly, the author ascertains the ideal of negotiable instrument counterplea so as to guarantee the correct aspect on study of counterplea theory. As an important system, the negotiable instrument counterplea’s ideal is consistent with the ideal of negotiable instrument law. Owing to the especial function of negotiable instrument, the ideal of negotiable instrument law is to protect deal security and promote circulation of negotiable instrument. Just under this ideal, the negotiable instrument counterplea is composed and explained. Finally, the author analyzes the necessity of classifying the negotiable instrument counterplea. On the issue that if it is necessary to classify the negotiable instrument counterplea, there are two opinions. The author thinks that it is necessary to classify the negotiable instrument counterplea according as a certain standard. Because through the classification, we can definitude the character and effect of the counterplea which comes from the different main contents so as to buildup the systematic cognition to negotiable instrument counterplea and better explain the contents of negotiable instrument counterplea. Furthermore, it can ascertain the defence scope of certain kind counterplea. Hereby, the party can have anticipation to behavior result. Consequently, it can exert the function of sticking up for benefit of both sides and guaranteeing the deal security. In addition, after classified studying the negotiable instrument counterplea, we can conclude the common grounds of all kinds of counterplea. When the new circs come forth, we can come under it to existent classification using the manner of analogy and definitude it’s concrete legal effect. Otherwise, we must study the main content of negotiable instrument counterplea separately and demonstrate renewably. This not only wastes resource, but also can not guarantee the coherence of ideal.Chapter 2, traditional counterplea theory----the binary constitutes of res counterplea and person counterplea. Traditional counterplea theory is called comparatively with new counterplea theory. It classifies the negotiable instrument counterplea into two kinds that are res counterplea and person counterplea in form or essential. This class method is adopted by most scholars. It is the general theory at present. The author considers that the thought process of traditional counterplea theory is: firstly, it classifies the negotiable instrument counterplea into res counterplea and person counterplea basing on the different deffence scope and prescribes that the res counterplea is the counterplea which debtor confronts all debtees and the person counterplea is the counterplea which debtor confronts certain debtee. Afterwards, under the direction of ideal of promoting the circulation of negotiable instrument, it decides the deffence scope of certain kind of counterplea through the comparing and scaling the benefits between debtee and debtor. Finally, it comes under the each counterplea into corresponding sort. Because the traditional counterplea theory solves the core question of negotiable instrument counterplea----restriction of counterplea, it has the inanalogous advantage comparing with other class methods. But, traditional counterplea theory resolves the question which is specific using the classification before classification, so it doesn’t react in deciding the legal effect of negotiable instrument counterplea. Furthermore the problem that a certain counterplea is res counterplea or person counterplea is not determined basing on advance theory but judged by the unclad benefit scale which is divorced from the theoretic frame. So the concept of res counterplea and person counterplea has no meaning substantially. In addition, it is indecent to consider the whole negotiable instrument counterplea using the contrast between res counterplea and person counterplea.Chapter 3, new counterplea theory----three classifications under the exterior right theory. After World WarⅡ, especially 1970, there arises the new counterplea theory in Germany. It has become the predominately theory about negotiable instrument counterplea and even has direction of replacing the traditional counterplea theory and becoming the general theory. The new counterplea theory was developed gradually through the continuous efforts of the scholars such as Jacobi, Schlickum, Hefermehl and Canaris. Its basic opinion is to renewably classify the negotiable instrument counterplea basing on the exterior right theory, namely acknowledge an independent kind of counterplea----validity counterplea besides the res counterplea and person counterplea. The new counterplea theory not only clearly explains the concrete legal important term which determines the legal effect of negotiable instrument counterplea, but also limits the validity counterplea on the basis of exterior right theory. So it embodies the correct cognition about negotiable instrument counterplea and consummates the counterplea theory and shows its correct development direction. The new counterplea theory still has definite limitation. Because the negotiable instrument counterplea has no total theoretic connection with exterior right theory, it isn’t suitable to take on it as the classification norm of the negotiable instrument counterplea. In addition, the non-right counterplea has the self-existent value. It is ill-considered that the new counterplea theory takes on it as one kind of the person counterplea.Chapter 4, four classifications of ----basing on the theory of two phases of negotiable instrument behavior. In the study process about negotiable instrument counterplea theory, many scholars bring forward their selves’particular classification methods after reviewing the intrinsic classification methods. Thereinto, the author agrees with the method of four classifications put forward by Mr. Zhuangziliangnan but has the different opinion on the classification standard and theoretic structure. The author considers that in the process of four classification of negotiable instrument counterplea, we should base on the formal criterion----the precondition of exertion of negotiable instrument right namely the foundation condition to classify the negotiable instrument counterplea into four classes and base on the essential criterion----the ideal of negotiable instrument counterplea to confirm the defence scope of every kind of counterplea and base on the precondition of classification of negotiable instrument counterplea----negotiable instrument theory, non-cause theory and will denotation theory to confirm the contained scope of all kinds of counterplea. Because the contents of will denotation theory and non-cause theory are determined by negotiable instrument theory, so it is the key to confirm the content of negotiable instrument theory. After comparing and analyzing, the author adopts the two phases theory of negotiable instrument behavior belonging to the creation theory about the negotiable instrument theory, namely negotiable instrument behavior is composed by debt burden behavior and right transfer behavior. The former is non-cause behavior and the latter is causal behavior. The former comes into existence basing on the fact that the debtor cognizes or should cognize the negotiable instrument and signature on the negotiable instrument; the latter comes into existence basing on tradition. In this way, the author classifies the negotiable instrument counterplea into four sorts----res counterplea, validity counterplea, non-right counterplea and person counterplea taking on the precondition of exertion of negotiable instrument right as the normal criterion and the ideal of negotiable instrument law namely protecting deal security and promoting circulation of negotiable instrument as the essential criterion on the basis of two phases theory of negotiable instrument behavior.Chapter 5, parses on each counterplea under the four classifications. The occasion of res counterplea is that the negotiable instrument itself is invalid. The effectiveness of it is that the whole persons who are claimed can defence the whole holders and it can not be eliminated under any circumstance. It includes the counterpleas basing on the negotiable instrument recordation and certain legal institution. The occasion of validity counterplea is that the negotiable instrument itself is valid but the debtor doesn’t carry through the valid debt burden behavior. Under the general circumstance, the certain person who is claimed can put forwards counterplea to the whole holders. If the person who is claimed has the responsibility to the existence of exterior of negotiable instrument debt and the third obtainer’s confide to exterior doesn’t base on the bad faith and important blame, the counterplea will be limited namely eliminate this sort of counterplea basing on exterior right theory. It concludes the counterpleas of incompetence, forge, agent without authority, material alter and payment without taking back the note. The occasion of non-right counterplea is that the negotiable instrument itself is valid and the debtor has burdened the debt effectively, but the holder doesn’t obtain the corresponding right of negotiable instrument. It is the counterplea that whole debtor can put forwards. But if the third obtainer has no bad faith and important blame to the acquire of negotiable instrument, this counterplea will be eliminated, namely base on the acquire in good faith. It concludes the counterpleas of causal relationship invalidity, will denotation wart and tradition contract deficiency. The occasion of person counterplea is that the negotiable instrument itself is valid and the debtor has burdened the debt effectively and the holder effectively obtains the corresponding right of negotiable instrument, but there are main contents which prevent the exertion of negotiable instrument right between specific parties. It is the counterplea that specific debtor puts forwards versus specific holder of negotiable instrument. But if the third obtainer has the nocuous meaning to the debtor when he is acquiring, the debtor can put forwards the counterplea, namely the counterplea is eliminated basing on the constitution of counterplea restriction. It is the counterplea basing on the legal relationship out of negotiable instrument.更多还原