金融论文 中英

持票人权利的可限制性
Restriction of the Holder’s Right

持票人权利一般不受前手身份或前手间原因关系的影响，即使票据上记载原因关系，只要不构成条件性限制，票据就仍然有流通性，受让票据的人就能享受抗辩切断的利益。这在英美法上就意味着受让票据的人有机会成为正当持票人。流通票据持票人的这种不受制于最初当事人之间的抗辩的性质，使流通票据成为广为接受的金钱替代物。对于这一流通票据转让的一般规则，日内瓦统一票据法体系和英美票据法体系都做了规定，虽然方式不同，但效果一致。但随着社会经济的发展和消费者主权运动的推动，在英美票据法司法实践中，为保护消费者利益，对消费者签发的票据做了特殊的考虑，并体现在一些国家最新修订的票据立法中，从而使英美票据法的衡平色彩更加鲜明。
Commonly the holder’s rights are free of influences from the former holder’s status or the relationship between former holders. Even if the instrument has the record of reasons or relationship, it will still be negotiable and the instrument transferee will still enjoy the profits of demurrer cut-off so long as there is no conditionality confinement, which means the instrument transferee will have an opportunity to become the holder in due course according to the Anglo-American law system. Such property of negotiable instrument holder free of demurrers between former parties concerned has made negotiable instruments become a money substitute accepted widely. For such general rules on transfer of negotiable instruments, both Geneva uniform negotiable instrument law system and Anglo-American negotiable instrument law system have provided relevant provisions which, although having different modes, achieve the same effects. However, along which socio-economic development and consumer sovereignty movement, to protect the interests of consumers, Anglo-American system of negotiable instrument laws have set special considerations on the instruments issued by consumers in juridical practices, which are indicated in some latest amended instrument laws, making the Anglo-American negotiable instrument laws have more evident equity colors.

票据一般在商事主体之间使用，但近年来越来越多的消费者以消费信贷的方式购买商品或接受服务。其通常作法是消费者签发票据给卖方，卖方将票据以一定的折扣转让给第三人(多为银行)。当卖方未履行交货义务，或所提供的货物或服务有缺陷时，消费者就将延迟支付票据，直到卖方交货或纠正了其履行瑕疵。但消费者的这种自我保护，只有在票据被卖方持有时才能实现。一旦票据流通到第三人手中，并且第三人符合正当持票人的全部要件时，消费者就必须向持票人全额支付票款，因为消费者的对人抗辩对于正当持票人是没有效力的，消费者只能设法从卖方寻求补偿，如果找不到卖方或者卖方推脱责任，那么消费者将处在一个很不利的位置。假如消费者对第三人，如银行等，也能够延迟支付，直到卖方交货或纠正了其履行瑕疵，那么对于消费者利益的护将会非常有利。而达到这一效果，无疑需要对正当持票人规则加以限制。www.en-ch.com
Instruments are commonly used between business bodies. But in recent years, more and more consumers buy merchandises or accept services in consumer credit. The common practice is that consumers issue documents to the seller and the seller transfers the instruments with certain discount to the third party (mainly banks). If the seller fails to fulfill its delivery obligations or its provided goods or services have any defect, the consumer will delay the payment of instruments until the seller delivers the goods or corrects its performance defects. However, such self-protection of consumers can not be realized until the documents are held by the seller. Once the instrument is negotiated to the third party who has all essentials for a holder in due course, the consumer must pay full instrument amounts to the holder because the demurrer of consumer is invalid for a holder in due course. What the consumer can do is to seek compensations from the seller. If the seller is unavailable or flees the responsibility, the consumer will be at a very unfavorable position. If the consumer may also delay its payment to the third party, such as banks, until the sellers deliver the goods or corrects its performance defects, it will be favorable for protection of the consumer's interests. To realize such effect, it is undoubtedly to confine the rules for holder in due course.