基于区块链构建的数字票据法律问题研究

发布时间：2018-07-13 15:50

【摘要】：我国票据市场日趋繁荣,票据不仅仅作为一种支付手段,更多的是作为融资工具而为广大小微企业所青睐。但是传统的纸质票据和依托央行ECDS系统构建的电子商业汇票,因其载体存在的天然缺陷以及我国《票据法》立法的滞后,导致的市场乱象和潜藏的金融风险同样不能忽视。近年来票据市场大案频发,金额动辄上十亿规模,完善我国票据法律制度、杜绝票据市场的混乱局面,对于我国的金融安全和稳定具有重要意义。区块链技术具有去中心化、去信任、时间戳、非对称加密和智能合约的特征,这些特征与票据的某些属性天然契合。基于区块链技术构建的数字票据作为传统纸质票据电子化的最新形式,与传统的纸质票据既有联系,又有分歧。其存在形式不同于纸质票据,数据电文是其物理的存在方式,并且必须借助特定的计算机网络调制解调设备,以及基于区块链技术构建的数字票据交易平台等,才能将二进制的数据电文转化成人类可以直接感受、操作的票据展现形式。但是,从根本的法律性质上推敲,数字票据并未颠覆传统的票据制度,只是因其存在形式的特殊性,与传统票据制度之间存在着冲突与变通的现象。就票据行为而言,与传统票据相比,无因性、文义性、要式性、独立性等票据法规定的特征,数字票据同样具备,而其转让背书同样需要遵循权利不可分以及背书连续等一般的规范;数字票据的转让背书,其权利转移、权利证明、权利担保等效力与传统票据别无二致;而其变通的方面主要是对于背书类别的突破、以及背书成立规则的变化,特别强调诸如书面形式、签章方式还有交付方式的重大差别;其与现行票据法律法规的冲突主要体现在背书性质、背书伪造、变造等特殊的情形,以及对于空白背书、期后背书的特殊使用等等。然而,《票据法》的立法已经十分久远,后来的修订也是小修小补,其制定时缺乏前瞻性,为数字票据等电子票据形式的发展造成了束缚。故而,对《票据法》进行修改,更好衔接其与数字票据相关规制法律之间的关系,是迫在眉睫的问题。通过在立法层面对票据、签章等概念的适当延伸,对于票据背书规则的相应改进,对于数字票据伪造责任的界定,以及相较传统纸质票据所独有的电子认证等涉及的相应法律问题进行规制,可以为数字票据的发展提供坚实的基础,更好发挥其相较于传统纸质票据和电子商业汇票的比较优势。
[Abstract]:Our country's bill market is flourishing day by day, the bill is not only as a means of payment, but also as a financing tool, which is favored by the majority of small and micro enterprises. However, the traditional paper bills and electronic commercial bills based on the ECDS system of the central bank can not be ignored because of the natural defects of the carrier and the lag of the legislation of our country's "Bill Law", which leads to the market disorder and the hidden financial risks. In recent years, the bill market cases frequently occur, the amount of money is frequently used on a billion scale. It is of great significance to improve the bill legal system and put an end to the chaotic situation of the bill market for the financial security and stability of our country. Block chain technology has the characteristics of decentralization, de-trust, timestamp, asymmetric encryption and intelligent contract, which naturally coincide with some properties of the bill. Digital bill based on block chain technology is the newest form of traditional paper bill, which is not only related to but also different from the traditional paper bill. Its existence form is different from paper bill, data message is its physical existence way, and must use special computer network modulation and demodulation equipment, as well as digital bill trading platform based on block chain technology, etc. In order to transform binary data message into human can directly feel, operate note display form. However, in terms of the fundamental legal nature, the digital bill does not subvert the traditional bill system, but because of the particularity of its existence, there is a phenomenon of conflict and flexibility between the digital bill and the traditional bill system. As far as bill behavior is concerned, compared with traditional instruments, digital instruments have the same characteristics as those stipulated in the negotiable instruments law, such as uncausality, literality, essentialism, independence, and so on. But its transfer endorsement also needs to abide by the general norms such as the rights cannot be separated and the endorsement is continuous, the transfer endorsement of digital instrument, the transfer of rights, the proof of rights, the guarantee of right, and so on, have the same effect as traditional instruments; The main flexibility is the breakthrough of the type of endorsement, as well as the change of the rules of establishment of endorsement, especially emphasizing the significant difference between the form of writing, the way of signature and the way of delivery; Its conflict with the current laws and regulations of bills mainly embodies in the nature of endorsement, forgery, alteration and other special circumstances, as well as the blank endorsement, the special use of post-endorsement and so on. However, the legislation of "Bill Law" is very long ago, and the later revision is also minor repair and supplement, and it lacks of foresight when it is formulated, which makes the development of digital bill and other electronic bill form a constraint. Therefore, it is an urgent problem to amend the Bill Law to better link up the relationship between it and the laws of digital bill regulation. Through the appropriate extension of the concepts of bill, signature and so on in the legislative level, the corresponding improvement of the rules of endorsement of the bill, the definition of the responsibility of forgery of the digital bill, And the corresponding legal issues involved in electronic authentication, which are unique to traditional paper bills, can provide a solid foundation for the development of digital bills. Better play to its comparative advantage over traditional paper bills and electronic commercial bills.
【学位授予单位】：中央民族大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D922.287

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