票据代理制度研究
发布时间：2018-09-05 20:40
【摘要】： 票据代理系由民事代理派生而来的一项重要的票据法制度。它可以充分弥补无票据行为能力人的行为缺陷；同时，也能够有效地扩张完全票据行为能力人的行为能力。因此，在社会主义市场经济条件下，票据代理制度具有极强的经济价值和实践意义。我国《票据法》第5条规定了票据代理，但其条文内容极具原则性，规则空间过大甚至空洞化，严重地威胁了票据代理制度的生存。因此，在票据立法方面，我们面临着深入思考如何更好地设计票据代理规则的课题。票据代理是票据法律制度的重要组成部分。票据代理虽属于一种特殊形念的民事代理，但由于受票据法的调整，因此，其富有自身的特点。于是，研究票据代理问题，便具有很强的理论意义。 可见，票据代理制度具有实践、立法和理论三重价值。缘于此，笔者认为，票据代理问题应该成为票据法学界重点研究的对象。遗憾的是，与票据法其他领域相比，票据代理问题的研究者较少，并且研究成果也少的可怜。当然，国内外也有一些学者对票据代理问题作过研究，并且其相关研究成果卓著，引起了理论界的瞩目。笔者认为，对票据代理制度的研究，只有形成百花齐放、百家争鸣的局面，才能真正地完善票据代理理论，推动票据代理方面的相关立法，进而指导票据实务。正基于此，笔者写作了此文，以期抛砖引玉；同时，斗胆奢望本论文能带给人们一点不同的启示。 本论文采用法解释学、历史学、法社会学和比较法学等多种研究方法，结合国内外票据代理制度的理论、立法与实践，对票据代理及其瑕疵问题作了深入而具体的探讨，并且对相关问题提出了切实可行的对策：而且，，比较分析了各种理论学说的优劣，深刻检讨了我国现行票据代理制度中存在的问题，对法律完善问题提出了积极的建议。 本论文在结构上分为六个部分。第一部分为票据代理的概述。该部分介绍了票据代理制度的理论渊源，界定了票据代理的概念，区别了与票据代理类似的几种常见法律行为，并划分了票据代理的种类。第二部分为票据代理的构成要件。该部分详细阐述了票据代理的形式要件和实质要件，有利于对票据代理的司法认定和实践操作。第三部分为票据代理瑕疵。该部分首先明确了票据代理瑕疵的定义，然后主要分析了形式瑕疵问题。第四部分为票据无权代理问题。该部分对票据无权代理的定义、性质、种类、代理权瑕疵、法律效力及其发生程序、追认权问题作了探讨。在追认权问题方面，笔者在比较分析了英美票据法系国家和我国的不同做法及其利弊后，认为承认追认代理更具合理性，具有一定的独创性。第五部分为票据越权代理问题。该部分界定了票据越权代理的概念，介绍了其常见形态，分析了其构成要件，并阐述了其法律效力。笔者在分析了票据越权代理责任的众多学说和世界两大票据法系的做法后，提出了自己的法律设计方案，具有新颖性。第六部分为票据表见代理问题。该部分介绍了票据表见代理的概念、适用范围、常见形态、构成要件和法律效力，并明确提出了票据立法确认表见代理的建议。 综上所述，票据代理制度理论体系自成一体，在现代票据法和代理法理论中均占有很重要的地位。票据代理制度看起来简单，但其中蕴涵着人类伟大的智慧，是博大精深的民法理论和精巧高超的商法技术的结晶体。我国《票据法》对票据代理的规制如此简单、粗糙，十分不利于票据代理的行使。因此，笔者建议，增加其应用性法律规范的具体规定，以适应票据发展的社会现实，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.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2007
【分类号】：D922.287
本文编号：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.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2007
【分类号】：D922.287
【相似文献】
相关硕士学位论文 前3条
1 胡伟;票据代理制度研究[D];山东大学;2007年
2 谭秀丽;票据代理法律问题研究[D];烟台大学;2007年
3 罗曼丽;票据代理法律问题研究[D];西南政法大学;2002年
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