Viewpoint | Analysis on the Interpretation of the Supreme People's Court on the Application of the Guarantee System in the the People's Republic of China Civil Code Article 44 Applicable to Cases of Release of Pledge of Electronic Bills of Exchange
Published:
2023-12-07
After the expiration of the statute of limitations for the main claim, the pledgee fails to exercise the security right in a timely manner, and the pledgee applies for the pledge of an electronic promissory note in accordance with the above legal provisions to dispute the application of the law in practice. The focus of the question is, what is the act or procedure that represents the delivery of a bill of exchange in an electronic bill of exchange registration system?
Article 44 of the Interpretation of the Supreme People's Court on the Application of the Guarantee System in the the People's Republic of China Civil Code stipulates: "After the expiration of the limitation period of action for the main creditor's rights, the people's court shall not support the mortgagee's claim to exercise the mortgage; the mortgagor shall The people's court shall support the claim of not assuming the guarantee liability on the grounds that the limitation period of action for the main creditor's rights has expired. Before the expiration of the limitation period of the main claim, the creditor only brings a lawsuit against the debtor, and after the judgment or mediation of the people's court, the people's court does not apply for enforcement against the debtor within the limitation period of the application for enforcement stipulated in the civil procedure law, and the people's court does not support the claim to exercise the mortgage right to the mortgagor.
After the expiration of the statute of limitations for the principal claim, if the debtor whose property is retained or a third party who has ownership of the retained property requests the creditor to return the retained property, the people's court shall not support it; if the debtor or a third party requests the auction or sale of the retained property and the settlement of the debt with the proceeds, the people's court shall support it.
The legal consequences of the expiration of the statute of limitations period for the principal claim, the pledge of rights by registration as a form of publicity, with reference to the provisions of paragraph 1; the pledge of movable property, the pledge of rights by delivery of a document of rights as a form of publicity, with reference to the provisions of paragraph 2."
After the expiration of the statute of limitations for the main claim, the pledgee fails to exercise the security right in a timely manner, and the pledgee applies for the pledge of an electronic promissory note in accordance with the above legal provisions to dispute the application of the law in practice. Opponents use Article 58 of the Supreme People's Court's interpretation on the application of the guarantee system in the the People's Republic of China Civil Code: "If a bill of exchange is pledged, the parties endorse the word" pledge "and sign the bill of exchange, and the bill of exchange has been delivered to the right holder, the people's court shall determine that the right of pledge is established when the bill of exchange is delivered to the right holder, they believe that if there is no sufficient evidence to prove that the electronic bill of exchange is delivered to the pledgee, the right of quality cannot be determined to be established, so the pledgee of the electronic bill of exchange applied for registration of the pledge registration cannot be supported. The focus of the question is, what is the act or procedure that represents the delivery of a bill of exchange in an electronic bill of exchange registration system?
Supporters believe that the pledge of electronic bills of exchange is effective registration, as long as the pledgee in the electronic bill of exchange pledge system in accordance with the law to register the pledgee will produce the effect of publicity and electronic bills have no carrier there is no physical delivery of paper bills, registration publicity is delivery, resulting in the legal effect against bona fide third parties. The dissenter held that: in the interpretation of the Supreme People's Court on the application of the guarantee system in the the People's Republic of China Civil Code, Article 58 is a legal provision expressly applicable to bills of exchange and after Article 44, so the provisions of Article 58 should be applied, and the pledgee cannot be identified if the delivery is not clear.
After the agency case, I think: Article 44 and Article 58 are the general principles and sub-rules of the relationship is not contradictory, the right pledge is divided into registration as a way of publicity of the right pledge and the delivery of the right certificate as a way of publicity of the right pledge, commercial bills of exchange is divided into electronic commercial bills of exchange and paper commercial bills of exchange. The physical signature and delivery of electronic commercial bills are different from paper commercial bills. Because there is no physical carrier, there is no physical delivery. The pledge record, signature and delivery of electronic commercial bills are all legally effective when they are registered in the bank's electronic bill system. Therefore, the provisions of Article 58 are also applicable to electronic commercial bills, but they are different from paper commercial bills. The trial result of the final case supports the pledge of the bill of exchange, but the beneficial argument still continues.
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