Viewpoint... The exercise of the right of recourse for electronic commercial acceptance bills and the analysis of the rules of judicial application.

The right of recourse to an instrument is the right of the holder to request repayment of the instrument and other legal amounts from the debtor of the instrument (including the drawer, the endorser, the acceptor and the guarantor) when the instrument is due to exercise the right to request payment and is rejected or cannot be accepted or there are other legal reasons for impeding the right to request payment. Bill recourse is divided into refusal to pay recourse and non-refusal to pay recourse, in which refusal to pay recourse refers to the act of the bill being refused payment after maturity and the holder requesting prior payment; non-refusal to pay recourse refers to the act of the holder requesting prior payment when the acceptor is declared bankrupt in accordance with the law and the acceptor is ordered to terminate business activities due to violation of the law. In judicial practice, refusal to pay recourse is more common, enterprise bankruptcy is still a minority, so the content of the bill recourse discussed in this paper also revolves around the situation of refusal to pay recourse.

1, electronic commercial acceptance draft prompt payment period.

After the maturity of the electronic commercial ticket, the holder shall first exercise the right to request payment to the bill acceptor, that is, to request payment according to the amount recorded in the bill. According to Article 53 of the the People's Republic of China Bill Law and Article 66 of the Measures for the Administration of Electronic Commercial Bill of Exchange Business, for bills of exchange for regular payment, the holder shall prompt the acceptor for payment within the prompt payment period, I .e. within ten days from the maturity date of the bill. If the bearer does not prompt payment within the aforementioned period, the bearer directly loses the right of recourse against subjects other than the drawer and the acceptor. In view of this, whether the holder has carried out the prompt payment operation in the electronic commercial ticket system during the prompt payment period is whether it can finally obtain the advance and key of payment, and failure to prompt payment on time will lose the right of recourse to the forehand (except the drawer and the acceptor). In addition, according to Article 58 of the Measures for the Administration of Electronic Commercial Bill of Exchange Business, the prompt payment period shall be 10 days from the maturity date of the bill, and the last day shall be postponed in case of statutory holidays, non-business days of large-value payment system and non-business days of electronic commercial bill of exchange system. However, it should be noted that the non-business days of statutory holidays and large payment systems are not exactly the same as the non-business days of the electronic commercial ticket system. Therefore, the author recommends that the holder complete the prompt payment operation as soon as possible during the prompt payment period to avoid the risk of losing recourse to other forehands (except the drawer and the acceptor) due to late prompt payment.

2, electronic commercial acceptance draft online prompt payment.

According to Article 5 of the Measures for the Administration of Electronic Commercial Bills of Exchange, the business of issuing, accepting, endorsing, guaranteeing, prompting payment and recourse of electronic commercial bills of exchange must be handled through the electronic commercial bill of exchange system. Thus, the exercise of the right of recourse for electronic commercial promissory notes needs to be exercised through the online system, and the offline sending of paper letters does not have recourse effect.

[Case] Beijing Aerospace Xinli Technology Co., Ltd. and Jiyuan Fengze Special Steel Industry Co., Ltd. Civil Judgment of Second Instance on Bill Recourse Dispute (2021) Jing 74 Min Zhong No. 188

The court held that although Jiyuan Fengze Company sent the "Notice of Recourse of Electronic Commercial Acceptance Bill" to Titanium Company and Aerospace Xinli Company respectively on July 26, 2019, Zheng Xiao, director of the Market and Industry Development Center of Aerospace Xinli Company, requested to put the mail into the express counter on July 29, and the mail inquiry form showed that it had been signed, the exercise of the right of recourse was not handled through the electronic commercial bill system, jiyuan Fengze Company's prompt payment before the due date of the electronic commercial bill of exchange does not meet the constituent elements of the refusal of payment to all predecessors. The bill has no cause, form and context, while the electronic commercial bill of exchange clearly requires that the electronic bill of exchange transactions should be carried out on the electronic commercial bill of exchange system, emphasizing the appearance and form of the electronic commercial bill of exchange, in order to ensure that the electronic commercial bill of exchange has a high degree of liquidity.

According to Article 62 of the the People's Republic of China Bill Law, when exercising the right of recourse, the holder shall provide relevant proof of the refusal of acceptance or refusal of payment. Thus, an important prerequisite for the exercise of recourse is to obtain a certificate of refusal to pay from the acceptor or payer. In the case of an electronic commercial promissory note, the fact that the bearer has been refused payment is reflected in the contents of the bill status at the top right of the face of the electronic commercial promissory note, for example, the bill status states that "prompt payment has been refused payment", which indicates that the bearer has made prompt payment during the prompt payment period and has been refused payment, and may exercise the right of recourse. However, the content of the note may reflect different states, the author combined with the relevant cases to organize the following:

This status is due to the failure of the acceptor and the failure of the access institution to respond on behalf of the acceptor, and the status of the bill is displayed as "prompt payment to be signed". In judicial practice, most cases regard this state as a substantial refusal to pay, and the holder can exercise the right of recourse.

[Case] Civil Judgment of Second Instance on Bill Recourse Dispute of Shengli Oilfield Wanhe Petrochemical Co., Ltd. and Binzhou Huihong Construction Engineering Co., Ltd. (2021) Lu 05 Min Zhong No. 1295

The court held that after the electronic commercial acceptance bill expired, Binzhou Huihong Company prompted Baota Petrochemical Group Finance Co., Ltd. for payment within the prompt payment period. However, Baota Petrochemical Group Finance Co., Ltd. neither paid in full and on time nor issued a certificate of refusal to pay or a refund reason, resulting in the bill being in a state of "prompt payment to be signed. Binzhou Huihong Company in the prompt payment to January 24, 2019, Baota Petrochemical Group Finance Co., Ltd. this "prompt payment to be signed" continued state, has constituted a substantial refusal to pay, at this time Binzhou Huihong Company should recognize that the payment has been rejected, should be in accordance with the law to exercise recourse to its forehand in a timely manner.

The status of such an instrument is due to the holder prompting payment before the maturity date of the instrument and the acceptor refusing to pay before the maturity date of the instrument. In this status, prompt payment can be operated again within the prompt payment period, and the bill status will be rolled again, but do not easily cancel the operation of prompt payment before expiration. If the prompt payment is prompted again after cancellation, the bill status will show overdue prompt payment. In judicial practice, there are cases in which the court has found that the holder has the right of recourse to the bill before the due date.

[Case] Zunyi Xiangjiang Investment (Group) Co., Ltd. and Miluo Jianliang Forestry Technology Co., Ltd. Civil Judgment of Second Instance on Bill Recourse Dispute (2021) Xiang 06 Min Zhong No. 1767

The court held that in this case, the due date of the bill of exchange was July 21, 2020, Jianliang Company prompted payment on July 20, 2020, only one day in advance, and its request for prompt payment was in a continuous state in the electronic commercial bill of exchange system because it had not been answered. When the bank replied to the refusal of the acceptor on July 27, 2020, it was already within the legal prompt payment period, in this case, it is not necessary for Jianliang to reapply for prompt payment. Therefore, Jianliang's act of prompting payment on July 20, 2020, prior to the maturity date of the note, has the legal effect of prompting payment, and it has effectively exercised its right to request payment of the note.

Since the bearer should prompt the acceptor for payment within ten days from the maturity of the instrument, the bearer will lose the right of recourse against his forehand if the bearer fails to sign for or refuses to pay the overdue prompt for payment. However, there are also exceptions in judicial practice. For example, the holder actually prompts for payment before the due date of the bill, and the acceptor also refuses to pay within the prompt payment period. After that, the holder will prompt payment again in the electronic commercial bill system after the prompt payment expires. At this time, although the bill status in the system is shown as overdue prompt payment, combined with the operation records of the system, the acceptor has made a refusal to pay during the prompt payment period, and the holder does not lose the right of recourse against all forehand.

[Case] Jilin Ji 'an Rural Commercial Bank Co., Ltd. and Longli Guofeng Village Bank Co., Ltd. Civil Judgment of Second Instance on Bill Recourse Dispute (2020) Supreme Law Minzong No. 888

The court held that the loss of the holder's right of recourse against the forehand depended crucially on the timing of the acceptor's refusal to pay. That is, as long as the acceptor does not refuse to pay before the maturity date of the bill, the holder has the right of recourse against all forehand. In this case, although the holder is early prompt payment and late prompt payment, but the acceptor in the nuclear engineering company is in the prompt payment period to make the intention of refusing to pay. In view of the fact that the acceptor in the nuclear engineering company within ten days from the due date, that is, in the prompt payment period to make a refusal to pay the meaning of the intention, so the ticket holder Bohu Agricultural Commercial Bank does not lose all the forehand, namely Jilin Ji'an Agricultural Commercial Bank, Longli Guofeng Village Bank recourse.

According to Article 70 of the the People's Republic of China Negotiable Instruments Law, the holder exercising the right of recourse may request the person against whom the recourse is made to pay the following amounts and expenses: (1) the amount of the bill of exchange for which payment has been refused; The interest calculated at the interest rate set by the People's Bank of China from the maturity date or the prompt payment date to the liquidation date of the (II) bill amount; (III) the cost of obtaining the relevant refusal certificate and issuing notice. When the person against whom the claim is made pays off the debt, the holder shall surrender the bill of exchange and the relevant proof of refusal and issue a receipt for the interest and expenses received. In view of the electronic commercial acceptance bill of exchange prompt payment and refusal to pay proof can be processed in the electronic commercial bill of exchange system, so the judicial practice of electronic commercial acceptance bill of exchange recourse to the scope of the bill amount and interest.

What is "interest calculated at the interest rate prescribed by the People's Bank of China", according to Article 21 of the Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Bills Dispute Cases, the interest rate prescribed by the People's Bank of China refers to the interest rate of the enterprise's liquidity loan for the same period as prescribed by the People's Bank of China. In view of the fact that the standard of the benchmark loan interest rate of the people's Bank of China has been canceled since August 20, 2019, the "interest calculated in accordance with the enterprise working capital loan interest rate stipulated by the people's Bank of China for the same period" in Article 70 of the the People's Republic of China bill law can be interpreted as "the interest calculated according to the loan market quotation rate published by the national interbank lending center in the same period".

[Case] Chongqing Higher People's Court, Jiangsu Haina Zhiguang Technology Co., Ltd. and Hangzhou Bogao Vehicle Electrical Engineering Co., Ltd. Civil Judgment of Second Instance on Bill Recourse Dispute (2021) Yu Min Zhong No. 13

The court held that Article 21 of the Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Bills Dispute Cases stipulates: "The interest rate stipulated by the People's Bank of China as mentioned in Articles 70 and 71 of the Bills Law refers to the interest rate of the People's Bank of China for the same period." Since August 20, 2019, the People's Bank of China has authorized the National Interbank Lending Center to announce the loan market quotation interest rate at 9:30 on the 20th of each month (postponed in case of holidays), the standard of the People's Bank of China's benchmark loan interest rate has been canceled. The court of first instance calculated interest on the basis of the quoted interest rate of the loan market published by the National Interbank Lending Center during the same period, which was based on the law. Haina Technology Company advocates that the interest shall be calculated at 2 times the quoted interest rate of the loan market published by the National Interbank Lending Center in the same period, which has no legal basis and is not supported by the Court.

According to Article 17 of the the People's Republic of China Bill Law, the right to an instrument is extinguished without exercise within the following periods: (a) the holder's rights to the drawer and acceptor of the instrument are two years from the maturity date of the instrument. See pay-as-you-go bills, promissory notes, two years from the date of issue; (II) the holder's rights against the cheque drawer, six months from the date of issue; (III) the holder's recourse against the forehand, six months from the date of refusal of acceptance or refusal of payment; (IV) the holder's recourse against the forehand, three months from the date of liquidation or the date of prosecution.

In addition, according to Article 18 of the the People's Republic of China Bill Law, if the holder loses the interest in the bill due to the expiration of the time limit of the bill's rights or the lack of the matters recorded in the bill, he still enjoys civil rights and may request the drawer or acceptor to return his interest equivalent to the amount of the unpaid bill. Due to the short and important characteristics of bill rights, the holder is more likely to lose his rights than the general creditors. In order to help the imbalance of interests, based on the principle of fairness and the concept of equity, the system of claim for the return of bill interests is set up, that is, the claim for the return of bill interests is a general civil claim, and the statute of limitations system of civil law is applicable-the statute of limitations period is 3 years, the limitation of action for the right to return the interests of the bill shall run from the date of the expiration of the limitation period of the bill's rights, not from the date of the refusal to pay.

[Case] Quanzhou Lianan Industrial Co., Ltd. and Putian Chengnan Sub-branch of Agricultural Bank of China Limited (2017) Minmin Shen No. 1898

The court held that in this case, Lianan Company claimed that Putian Chengnan Sub-branch of Agricultural Bank of China had the right to return the interest equivalent to the amount of 400000 yuan of the bank acceptance bill involved, while Putian Chengnan Sub-branch of Agricultural Bank of China believed that the statute of limitations for Lianan Company's claim had passed. In this regard, the Fujian Provincial Higher People's Court held after review that the focus of the dispute between the two parties in this case is whether Lianan Company's exercise of the right to return the benefits of the bill has exceeded the statute of limitations. The statute of limitations for the right to claim the return of the interests of the bill is two years in accordance with the provisions of the General Principles of Civil Law, and the statute of limitations period is calculated from the date on which the right is or should be known to have been infringed. The maturity date of the bill of exchange in this case is August 2, 2008. According to the provisions of Article 17 of the the People's Republic of China Bill Law on the limitation of bills, the holder's bill rights are extinguished due to non-exercise within two years from the maturity date of the bill. Therefore, Lianan Company should have known on August 2, 2010 that its rights under the bill have been infringed, and since then it can request the return of the bill benefits to Putian Chengnan Sub-branch of Agricultural Bank, however, Lianan Company only claimed its rights to Putian Chengnan Sub-branch of Agricultural Bank of China in 2015, which has exceeded the two-year statute of limitations. If, according to Lianan's claim, the statute of limitations starts from the time when its consignment is rejected, it means that it can claim its rights at any time after the elimination of the bill rights, which is clearly contrary to the legislative purpose of the statute of limitations, so it is not improper for the first and second instance to dismiss its claim on the grounds of exceeding the statute of limitations.

According to Article 6 of the Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Bills Disputes, the court with jurisdiction over bills recourse disputes for commercial bills shall be the people's court of the place where the bills are paid or the defendant's domicile, and the place of payment of bills shall be specified in the commercial bill. Subject to, if not specified, the place of business, residence or habitual residence of the bill payer or agent payer shall be the place of the bill. Due to the elements recorded on the face of the electronic commercial acceptance bill, compared with the paper bill, the biggest difference is that the record of the payment bank is canceled. The bill has the name of the payer, but does not record the address of the payer, but records the address of the payer's bank. Is the dispute over the bill right of the electronic commercial acceptance bill under the jurisdiction of the court where the payer is domiciled or the court where the payer's bank is located? The author believes that the place of payment of the bill is the place of payment stated on the bill, and the face of the electronic commercial acceptance bill records the address of the payer's bank, which should be governed by the court where the address of the bank is located. Only when the address of the payer's bank is not recorded on the bill, the provisions of judicial interpretation can be applied to determine the jurisdiction by the payer's place of business, domicile or habitation.

In addition, in order to facilitate the handling of cases, the Supreme People's Court may issue a notice of centralized jurisdiction because of the wide scope of certain cases, involving a large number of bill rights holders, and the special circumstances of "thunderstorms" or deep debt crisis. Therefore, it is suggested that the holder should reasonably choose the jurisdiction court of the bill right recourse dispute according to the time cost, transportation cost, communication cost and other factors of the case.