票據(jù)代理制度研究
發(fā)布時間：2018-09-05 20:40
【摘要】： 票據(jù)代理系由民事代理派生而來的一項重要的票據(jù)法制度。它可以充分彌補(bǔ)無票據(jù)行為能力人的行為缺陷；同時，也能夠有效地擴(kuò)張完全票據(jù)行為能力人的行為能力。因此，在社會主義市場經(jīng)濟(jì)條件下，票據(jù)代理制度具有極強(qiáng)的經(jīng)濟(jì)價值和實踐意義。我國《票據(jù)法》第5條規(guī)定了票據(jù)代理，但其條文內(nèi)容極具原則性，規(guī)則空間過大甚至空洞化，嚴(yán)重地威脅了票據(jù)代理制度的生存。因此，在票據(jù)立法方面，我們面臨著深入思考如何更好地設(shè)計票據(jù)代理規(guī)則的課題。票據(jù)代理是票據(jù)法律制度的重要組成部分。票據(jù)代理雖屬于一種特殊形念的民事代理，但由于受票據(jù)法的調(diào)整，因此，其富有自身的特點。于是，研究票據(jù)代理問題，便具有很強(qiáng)的理論意義。 可見，票據(jù)代理制度具有實踐、立法和理論三重價值。緣于此，筆者認(rèn)為，票據(jù)代理問題應(yīng)該成為票據(jù)法學(xué)界重點研究的對象。遺憾的是，與票據(jù)法其他領(lǐng)域相比，票據(jù)代理問題的研究者較少，并且研究成果也少的可憐。當(dāng)然，國內(nèi)外也有一些學(xué)者對票據(jù)代理問題作過研究，并且其相關(guān)研究成果卓著，引起了理論界的矚目。筆者認(rèn)為，對票據(jù)代理制度的研究，只有形成百花齊放、百家爭鳴的局面，才能真正地完善票據(jù)代理理論，推動票據(jù)代理方面的相關(guān)立法，進(jìn)而指導(dǎo)票據(jù)實務(wù)。正基于此，筆者寫作了此文，以期拋磚引玉；同時，斗膽奢望本論文能帶給人們一點不同的啟示。 本論文采用法解釋學(xué)、歷史學(xué)、法社會學(xué)和比較法學(xué)等多種研究方法，結(jié)合國內(nèi)外票據(jù)代理制度的理論、立法與實踐，對票據(jù)代理及其瑕疵問題作了深入而具體的探討，并且對相關(guān)問題提出了切實可行的對策：而且，，比較分析了各種理論學(xué)說的優(yōu)劣，深刻檢討了我國現(xiàn)行票據(jù)代理制度中存在的問題，對法律完善問題提出了積極的建議。 本論文在結(jié)構(gòu)上分為六個部分。第一部分為票據(jù)代理的概述。該部分介紹了票據(jù)代理制度的理論淵源，界定了票據(jù)代理的概念，區(qū)別了與票據(jù)代理類似的幾種常見法律行為，并劃分了票據(jù)代理的種類。第二部分為票據(jù)代理的構(gòu)成要件。該部分詳細(xì)闡述了票據(jù)代理的形式要件和實質(zhì)要件，有利于對票據(jù)代理的司法認(rèn)定和實踐操作。第三部分為票據(jù)代理瑕疵。該部分首先明確了票據(jù)代理瑕疵的定義，然后主要分析了形式瑕疵問題。第四部分為票據(jù)無權(quán)代理問題。該部分對票據(jù)無權(quán)代理的定義、性質(zhì)、種類、代理權(quán)瑕疵、法律效力及其發(fā)生程序、追認(rèn)權(quán)問題作了探討。在追認(rèn)權(quán)問題方面，筆者在比較分析了英美票據(jù)法系國家和我國的不同做法及其利弊后，認(rèn)為承認(rèn)追認(rèn)代理更具合理性，具有一定的獨創(chuàng)性。第五部分為票據(jù)越權(quán)代理問題。該部分界定了票據(jù)越權(quán)代理的概念，介紹了其常見形態(tài)，分析了其構(gòu)成要件，并闡述了其法律效力。筆者在分析了票據(jù)越權(quán)代理責(zé)任的眾多學(xué)說和世界兩大票據(jù)法系的做法后，提出了自己的法律設(shè)計方案，具有新穎性。第六部分為票據(jù)表見代理問題。該部分介紹了票據(jù)表見代理的概念、適用范圍、常見形態(tài)、構(gòu)成要件和法律效力，并明確提出了票據(jù)立法確認(rèn)表見代理的建議。 綜上所述，票據(jù)代理制度理論體系自成一體，在現(xiàn)代票據(jù)法和代理法理論中均占有很重要的地位。票據(jù)代理制度看起來簡單，但其中蘊涵著人類偉大的智慧，是博大精深的民法理論和精巧高超的商法技術(shù)的結(jié)晶體。我國《票據(jù)法》對票據(jù)代理的規(guī)制如此簡單、粗糙，十分不利于票據(jù)代理的行使。因此，筆者建議，增加其應(yīng)用性法律規(guī)范的具體規(guī)定，以適應(yīng)票據(jù)發(fā)展的社會現(xiàn)實，方便司法操作。
[Abstract]:Negotiable instrument agency is an important negotiable instrument law system derived from civil agency. Article 5 of the Bill Law of our country stipulates the bill agency, but its contents are very principled, the space of rules is too large or even empty, which seriously threatens the existence of the bill agency system. Therefore, in the bill legislation, we are faced with the problem of how to better design the bill agency rules. Bill agency is an important part of the legal system of bill. Although it belongs to a special concept of civil agency, it has its own characteristics because of the adjustment of bill law.
It can be seen that the bill agency system has triple value of practice, legislation and theory. Therefore, the author believes that the bill agency problem should be the focus of the study of the bill law. Unfortunately, compared with other areas of the bill law, there are fewer researchers on the bill agency problem, and the research results are also few. Of course, there are some at home and abroad. Scholars have studied the issue of negotiable instruments agency, and their relevant research results have attracted the attention of the theoretical circles. The author believes that only when a hundred flowers bloom and a hundred schools of thought contend can the study of negotiable instruments agency system truly improve the theory of negotiable instruments agency, promote the relevant legislation of negotiable instruments agency, and guide the practice of negotiable instruments. Based on this, the author has written this article in order to throw a brick to attract jade; at the same time, bold hope that this paper can bring people a little different inspiration.
This paper adopts various research methods, such as legal hermeneutics, history, sociology of law and comparative law, and combines the theory, legislation and practice of the negotiable instruments agency system at home and abroad, makes a thorough and concrete discussion on the negotiable instruments agency and its defects, and puts forward feasible countermeasures to the related problems: moreover, it compares and analyzes various theories. The merits and demerits of the doctrine have profoundly reviewed the problems existing in the current negotiable instruments agency system in China, and put forward positive suggestions for the improvement of the law.
This paper is divided into six parts in structure.The first part is an overview of negotiable instrument agency.This part introduces the theoretical origin of negotiable instrument agency system,defines the concept of negotiable instrument agency,distinguishes several common legal acts similar to negotiable instrument agency,and classifies the types of negotiable instrument agency.The second part is the constituent elements of negotiable instrument agency. The third part is the defect of bill agency. This part first defines the defect of bill agency, then mainly analyzes the problem of form defect. The fourth part is the problem of unauthorized agency of bill. The definition, nature, types, defects of agency right, legal effect and its occurrence procedure of unauthorized agency of negotiable instruments are discussed. On the issue of recourse right, the author compares and analyzes the different practices and advantages and disadvantages of common law countries and our country, and thinks that recognising recourse agency is more reasonable and has certain originality. This part defines the concept of ultra vires agency of bill, introduces its common forms, analyzes its constituent elements and expounds its legal effect. After analyzing many theories of ultra vires agency of bill and the practices of the two major negotiable instruments law systems in the world, the author puts forward his own legal design scheme. The sixth part is the problem of agency by estoppel of negotiable instruments. This part introduces the concept of agency by estoppel of negotiable instruments, scope of application, common forms, constitutive requirements and legal effect, and puts forward the suggestion of agency by estoppel of negotiable instruments legislation.
To sum up, the theory system of negotiable instruments agency system is a self-contained system, which occupies a very important position in both modern negotiable instruments law and agency law theory. The reasonable regulation is so simple and rough that it is not conducive to the exercise of bill agency. Therefore, the author proposes to increase the specific provisions of its applicable legal norms in order to adapt to the social reality of bill development and facilitate judicial operation.
【學(xué)位授予單位】：山東大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2007
【分類號】：D922.287
本文編號：2225404
[Abstract]:Negotiable instrument agency is an important negotiable instrument law system derived from civil agency. Article 5 of the Bill Law of our country stipulates the bill agency, but its contents are very principled, the space of rules is too large or even empty, which seriously threatens the existence of the bill agency system. Therefore, in the bill legislation, we are faced with the problem of how to better design the bill agency rules. Bill agency is an important part of the legal system of bill. Although it belongs to a special concept of civil agency, it has its own characteristics because of the adjustment of bill law.
It can be seen that the bill agency system has triple value of practice, legislation and theory. Therefore, the author believes that the bill agency problem should be the focus of the study of the bill law. Unfortunately, compared with other areas of the bill law, there are fewer researchers on the bill agency problem, and the research results are also few. Of course, there are some at home and abroad. Scholars have studied the issue of negotiable instruments agency, and their relevant research results have attracted the attention of the theoretical circles. The author believes that only when a hundred flowers bloom and a hundred schools of thought contend can the study of negotiable instruments agency system truly improve the theory of negotiable instruments agency, promote the relevant legislation of negotiable instruments agency, and guide the practice of negotiable instruments. Based on this, the author has written this article in order to throw a brick to attract jade; at the same time, bold hope that this paper can bring people a little different inspiration.
This paper adopts various research methods, such as legal hermeneutics, history, sociology of law and comparative law, and combines the theory, legislation and practice of the negotiable instruments agency system at home and abroad, makes a thorough and concrete discussion on the negotiable instruments agency and its defects, and puts forward feasible countermeasures to the related problems: moreover, it compares and analyzes various theories. The merits and demerits of the doctrine have profoundly reviewed the problems existing in the current negotiable instruments agency system in China, and put forward positive suggestions for the improvement of the law.
This paper is divided into six parts in structure.The first part is an overview of negotiable instrument agency.This part introduces the theoretical origin of negotiable instrument agency system,defines the concept of negotiable instrument agency,distinguishes several common legal acts similar to negotiable instrument agency,and classifies the types of negotiable instrument agency.The second part is the constituent elements of negotiable instrument agency. The third part is the defect of bill agency. This part first defines the defect of bill agency, then mainly analyzes the problem of form defect. The fourth part is the problem of unauthorized agency of bill. The definition, nature, types, defects of agency right, legal effect and its occurrence procedure of unauthorized agency of negotiable instruments are discussed. On the issue of recourse right, the author compares and analyzes the different practices and advantages and disadvantages of common law countries and our country, and thinks that recognising recourse agency is more reasonable and has certain originality. This part defines the concept of ultra vires agency of bill, introduces its common forms, analyzes its constituent elements and expounds its legal effect. After analyzing many theories of ultra vires agency of bill and the practices of the two major negotiable instruments law systems in the world, the author puts forward his own legal design scheme. The sixth part is the problem of agency by estoppel of negotiable instruments. This part introduces the concept of agency by estoppel of negotiable instruments, scope of application, common forms, constitutive requirements and legal effect, and puts forward the suggestion of agency by estoppel of negotiable instruments legislation.
To sum up, the theory system of negotiable instruments agency system is a self-contained system, which occupies a very important position in both modern negotiable instruments law and agency law theory. The reasonable regulation is so simple and rough that it is not conducive to the exercise of bill agency. Therefore, the author proposes to increase the specific provisions of its applicable legal norms in order to adapt to the social reality of bill development and facilitate judicial operation.
【學(xué)位授予單位】：山東大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2007
【分類號】：D922.287
【相似文獻(xiàn)】
相關(guān)碩士學(xué)位論文 前3條
1 胡偉;票據(jù)代理制度研究[D];山東大學(xué);2007年
2 譚秀麗;票據(jù)代理法律問題研究[D];煙臺大學(xué);2007年
3 羅曼麗;票據(jù)代理法律問題研究[D];西南政法大學(xué);2002年
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