Point of View... The way of relief of the endorser in the case of the refusal of the bill of exchange.
Published:
2022-05-11
1. issues raised
A bill of exchange is an instrument issued by the drawer and the entrusted payer pays the fixed amount to the payee or holder unconditionally on sight of the bill or on a specified date. Causeless, essential and meaningful are the three characteristics of bills, which determines that they can operate independently from the basic relationship and maintain a high degree of liquidity in multiple continuous bill circulation relationships. In particular, as one of the types of bills of exchange, commercial bills of exchange can effectively solve the financing difficulties of enterprises, the rapid realization of the needs. However, in real life, due to various reasons, when the holder prompts the payer to accept, he is often refused to pay and sued the endorser. At this time, the endorser should be how to remedy it? This paper intends to discuss the relief channels of the endorser in the case of the refusal of the bill of exchange through four cases.
Analysis of 2. Related Cases and Referee's Viewpoint
The (I) endorser, in the event of being sued by the holder (the case is pending), cannot exercise the right of re-recourse on the basis of the instrument relationship.
Case one:Case of Contract Dispute between Equipment and Materials Branch of Shanxi Jincheng Anthracite Mining Group Co., Ltd. and Ningbo Daxie Development Zone Ruixin Trading Co., Ltd. (Beilun District People's Court of Ningbo City, Zhejiang Province [2019] Zhejiang 0206 Minchu No. 2764)
The Court held that:In the case of the bill of exchange involved in the case of refusal to pay, the holder Jincheng Gongxing Industry and Trade Co., Ltd. has the right to exercise the right of recourse to the plaintiff, the plaintiff in accordance with the law to Jincheng Gongxing Industry and Trade Co., Ltd. after paying off, enjoy the right to the drawer, endorser, the defendant as an endorser, should pay the plaintiff the bill of exchange of 1000000 yuan.
From the above judgment point of view, it can be seen that the endorser cannot exercise the right of re-recourse on the basis of the bill relationship in the case of being sued by the holder (the case has not been concluded). Because Article 68, paragraph 3, of the Bill Law stipulates: "The person against whom the claim is made shall have the same rights as the holder of the bill after the payment of the debt". Article 71, paragraph 1, provides that "the person against whom the claim is made may exercise the right of re-recourse against other debtors of the bill of exchange after paying off in accordance with the provisions of the preceding article · · ·". Therefore, in the absence of a case, the endorser (the person against whom the claim is made) has not yet paid off the debt and has no proof of payment of the instrument and related expenses, and cannot have the same rights as the holder of the instrument.
When the (II) bill of exchange is not paid, the creditor who has endorsed the transfer of the bill of exchange claims the cause of the claim is not supported.
Case two:Case of Dispute over Sales Contract between Dongwu Banner Branch of Xiwuzhumuqin Banner Yilong Coal Industry Co., Ltd. and Beijing Longyi Chengxin Trading Co., Ltd. (No. 1741, No. 25, No. [2021], Intermediate People's Court of Xilin Gol League, Inner Mongolia Autonomous Region)
The Court held that:The appellant, Xiwuzhumuqin Banner Yilong Coal Co., Ltd. Dongwuqi Branch, re-endorsed and transferred the acceptance bill to its subsequent creditors, shall be deemed to have used the acceptance bill to pay the contract consideration to the subsequent creditors, and it has realized the payment and settlement function of the acceptance bill. Therefore, the appellant Xiwuzhumuqin Banner Yilong Coal Industry Co., Ltd. Dongwuqi Branch to the case-related acceptance draft can not accept the payment, should be the appellee Beijing Longyi Chengxin Trading Co., Ltd. to continue to perform the "coal sales contract" payment obligations of the appeal request, lack of facts and legal basis, the court will not support.
From the point of view of the court decision, it can be seen that the creditor at this time is not the last holder of the bill of exchange, and its bill rights have been disposed of and the payment and settlement function of the acceptance bill has been realized. Even if the bill of exchange is not paid and the creditor faces recourse from the holder, given that the creditor is not actually liable and is not the last debtor of the instrument, it does not necessarily become liable in the course of recourse. If the creditor is supported to claim a cause claim against the debtor, the debtor will not be able to obtain the bill of exchange, but the last holder can claim to pay the amount of the bill to the debtor on the basis of the bill relationship, the debtor will face the risk of double settlement, the creditor also has the possibility of double benefit.
(III) the person against whom the claim is made has the right to exercise the right of re-recourse within the term of the right to the instrument after the payment of the debt, otherwise the right is overdue.
Case three:Case of Dispute over Recourse of Bills between Beijing North Guojian Holding Group Co., Ltd. and Beijing Lan Tian Da Cheng New Building Materials Co., Ltd. (Beijing Daxing District People's Court [2020] Beijing 0115 Min Chu No. 11364)
The Court held that:In the opinion of the Court, Article 17 of the the People's Republic of China Bill Law stipulates that the right to an instrument shall be extinguished without exercise within the following period: (4) the holder's right of re-recourse against the forehand shall be three months from the date of liquidation or the date of the prosecution. According to the facts ascertained, the North State Construction Company transferred 212,757 yuan to Haipeng Business Center on August 19, 2019, so it should exercise re-recourse against the forehand before November 18, 2019, otherwise the bill re-recourse is eliminated. The Northern State Construction Company filed the lawsuit in this case has exceeded the above-mentioned time limit, and in the lawsuit, the Northern State Construction Company also did not prove that the exercise of re-recourse in the above-mentioned time limit, so the defense opinion of Lan Tianda Dacheng Company was established, the Northern State Construction Company's bill re-recourse was eliminated, and the Court did not support its litigation request. After the rights to the instrument are extinguished, the claims and debts of the parties relating to the underlying legal relationship may be resolved separately.
This case reminds the person against whom the claim is made to exercise the right of re-recourse in a timely manner within the time limit prescribed by law after paying off the debt, so as to protect their legitimate rights and interests, otherwise they will lose their rights within the time limit. Article 17 of the Negotiable Instruments Law stipulates that the significance of eliminating the statute of limitations lies in this, and at the same time avoids the obligor from being trapped in a certain legal relationship for a long time.
(IV) the right of re-recourse of the person against whom the claim is made is extinguished, the creditor's rights and debts may be claimed separately on the basis of the basic legal relationship.
Case four:Case of Dispute over Sales Contract between Beijing Landa Dacheng New Building Materials Co., Ltd. and Beijing North Guojian Holding Group Co., Ltd. (Beijing No.2 Intermediate People's Court [2020] Jing 02 Min Zhong No. 10891)
The Court held that:Northern State Construction Company supplies to Lan Tianda Dacheng Company, and Lan Tianda Dacheng Company has the obligation to pay the purchase price to Northern State Construction Company. In this case, although the North State Construction Company received the bill of exchange paid by Lan Tian Dacheng Company, the bill of exchange failed to be accepted. The North State Construction Company paid the bill amount to the bill holder for this purpose. Between the North State Construction Company and Lan Tian Dacheng Company, Lan Tian Dacheng Company, as the buyer, did not fulfill its payment obligation because the bill paid by Lan Tian Dacheng Company failed to accept. The Northern State Construction Company exercised the right of recourse to the drawer Hongxuan Company, although the effective legal documents confirmed that Hongxuan Company should assume the obligation to pay, but the Northern State Construction Company has not been paid off, therefore, the Northern State Construction Company did not obtain the consideration of the goods, Lan Tiandacheng Company as the buyer should still fulfill the obligation to pay the purchase price.
This decision makes it clear that if the right of re-recourse of the person against whom the claim is made is extinguished, the claim for relief of the debt may still be claimed separately on the basis of the underlying legal relationship. However, there are two premises: first, there is a real transaction relationship between the two parties, and second, the two parties did not agree to endorse the transfer of the bill after the cause of the creditor's rights are eliminated. At this point, the right to request payment of the promissory note is ultimately not realized due to the failure of the acceptor to pay, and the right of re-recourse of the person being pursued is extinguished by the expiration of the time limit. If the creditor fails to obtain the corresponding face value and realize the right to the instrument, the debtor cannot be considered to have completed the payment obligation under the contractual relationship. Based on the contractual relationship between the two parties, the creditor separately claims that the creditor subject is qualified and has a factual and legal basis.
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