国际结算 教学课件(3).doc

Chapter 3 Negotiable Instrument1Conduct of negotiable instruments2Bill of Draft（*）3Promissory Note1Conduct of Negotiable instrumentsA、Definition & History of NotesB、Features of Notes（*）C、Function of NotesD. Parties to a negotiable instrumentA、Definition & History of Notes Rome Chinese Tang & Song Dynasty 中国票据起源很早，唐代的飞钱和贴子，是汇票和支票的萌芽；南宋时代使用的交子是本票的雏形Classification of Negotiable Instrument汇票（BILL OF EXCHANGE） 本票（PROMISSORY NOTE） 支票（CHEQUE，CHECK）A negotiable instrument is a chose in action, the full and legal title to which is transferable by delivery of the instrument (possibly with the transferors endorsement) with the result that complete ownership of the instrument and all the property it represents passes freely from equities to the transferee, providing the latter takes the instrument in good faith and for value. 流通票据是一种法定的财产,这种财产的全部或法定的权益可以通过交付进行转让(可以凭转让方的背书),其转让的结果是只要受让人是正当取得的或者支付对价而取得该财产,该票据的全部所有权及其所代表的财产权益将转移给受让人.B、Features of Negotiable Instrumentsa. to be transferred easily and freelyb. to be independent of its basic relationc. to protect bona fide holder speciallyd. its issuance and acts must be in conformity with bill lawsAssignment 让与: Transfer转让 Negotiation 流通C、Function of Negotiable InstrumentsAs a means of paymentAs a credit instrumentAs a transferable instrumentEssentials of a negotiable instrument:a. An unconditional order or promise in writing to pay a sum certain in moneyb. Addressed by one person to anotherc. Payable to a specific person or bearer or to orderd. Payable on demand or at a definite future timeD. Parties to a negotiable instrumenta. Drawer: b. Drawee: c. Payee: d. Acceptor e. Endorser f. Endorseeg. Acceptor for honor h. Guarantor i. Holder :Holder for value; Holder in due courseDEFG A B Drawee Drawer(Acceptor) PayeeFirst endorserICHolderAcceptor for honorPayer for sbs honorKGuarantora. Drawer: A drawer is the person who draws a bill of exchange or a promissory or a check upon the drawee for the payment of a certain amount of moneyb. Drawee: A drawee is the person upon whom a bill of exchange or a check is drawn. He is also known as the addressee of a draftC. Payee: A payee is the person to whose order the drawee is to make payment or to whom the money is to be paidd. Acceptor: If and when the drawee agrees and assets to the order in writing addressed to him on a bill of exchange by signing his name on its face, indicating that he will pay on due date, the drawer will become an acceptor.e. Endorser: When a payee or a holder signs his name on the back of an instrument for the purpose of transferring it to another person, he is called an endorser. He is liable to his subsequent endorser, his endorsee or any subsequent holder of the instrument.f. Endorsee: An endorsee is the person to whom an instrument is endorsed. He is the holder of an instrument, which has been transferred by the endorser.g. Acceptor for honor: The person who himself is not a party liable on a bill of exchange but with the consent of the holder may intervene and accept the bill supra protest.h. Guarantor: A guarantor is the person who guarantees the acceptance and payment of a bill of exchange, though he is not a party liable thereto. The obligations of the guarantor are the same as those of the guaranteed.I. Holder : A holder is the possessor of an instrument, namely the payee, the endorsee or bearer. He may sue, if needed, on the instrument in his own name. Holder for value: A holder for value is the person who possesses an instrument for which value has been given by himself or by some other person. Holder in due course: The person who is in possession of an instrument that is: i. complete and regular on its face,ii. taken before maturity without notice of its previous dishonor. iii. taken in good faith and for value and iv. taken without notice of any infirmity in the instrument or defect in the title of the person negotiating it. He is also called a bona fide holder, who may claim payment from all parties liable on the instrument. (1.票面完整正常；2.没有过期，3.未悉以前曾退票；4.未悉前手权利有缺陷之处；5.善意取得票据并提供对价)2、Bill of Draft（*）(1) Definition(2) Essentials of a bill of exchange(3) Acts of a bill of exchange(4) Classification of a bill of exchange(1) DefinitionA bill of exchange is an unconditional order of writing , addressed by one person to another, signed by the person give it, requiring the person to whom it is addressed to pay on demand or at a fixed or determinable future time a sum certain in money to or to the order of a specified person or to bearer. (汇票是一人向另一人开出的,由开出人签字,要求收件人对某一特定的人或其指定人或持票来人即期或固定地,或在可以确定的未来某一日期支付一定货币进而的无条件支付命令)Sample: How to use a bill of exchange? Exchange for USD10,000.00 July 13, 2006 Paris At Thirty days after shipment date (Shipment date：Jul 10, 2006) pay to the order of C Co the sum of US Dollars Ten Thousand Only Drawn under P/O NO. 95E03LC001 dated on May 13rd, 2006 To: A Company, New York For B Company, PARIS (Signed)(2)Essentials of a bill of exchangeA. The word” Exchange” B. An unconditional order in writingC. A sum certain money D. Name and Address of the draweeE. Name or entity of the payee F. Date and place of issueG. Drawers signature(s) H. TenorI. Place of paymentB. An unconditional order in writingPay to the order of C Co provided the goods are complied with contract the sum of USD ten thousand only. Pay to the order of C Co the sum of USD ten thousand out of the revenue of sales for the lot of textiles.Pay to the order of C Co the sum of USD ten thousand C. A sum certain money - Bear interest on a bill of exchange Pay to the order of C Co the sum of USD ten thousand plus interest calculated at the rate of 3% per annum from the date hereof to the date of payment.-Bear payment by installments Pay to the order of C Co the sum of USD ten thousand by ten equal consecutive monthly installments. - Bear payment by other kinds of currencyPay to the order of C Co the sum of USD ten thousand converted into HK dollar at current rate of exchange.D. Name and address of the draweeVariation: 对己汇票: 付款人和出票人为同一个当事人 指己汇票: 付款人和收款人为同一个当事人E. Name or entity of the payee (1)Restrictive Order: Cannot be negotiable Pay to B Company only. Pay to B company , Not Transferable Pay to B Company , Not Negotiable(2)Demonstrative Order: to be negotiable by endorsement Pay to the order of B Company. Pay to B Company or order. PAY TO B ？(3)Bearer Order: Negotiation by delivery Pay to bearer Pay to B Company or BearerF. Date and place of issue-Date of Issue：(1)To judge due to date of a bill of drafts (2)To definite time of presentation (3)To check validity of a bill of drafts (4)To vindicate if the drawers insolvent or not-Place of issue A bill of exchange to be effective according to the bill laws of issuing placeG. Drawers signature (s)(1)No signature, no liability (2)Forge signatureH. Tenor Sight bill & Usance bill(1) At sight pay to the order of On demand pay to the order of. On presentation pay to the order of .(2)Payable on a fixed future date） On 20th , July 2003 pay to the order of (3) Payable at a fixed time after date At 30 days after date pay to the order of. (4)Payable at a fixed time after sight At 30 days after sight pay to the order of (5)Payable at a fixed time after the happening of a specified event At 30 days after bill of lading date pay to the order of . I. Place of PaymentPlace of payment=place of draft proceedsNotice of Dishonor or Protest should be issued as per the law of payment placeNon-essentials of a bill of exchange(1)A Banker Designated as Payer (2)Referee in Case of Need(3)Notice of Dishonor Excused or Protest Waived(4)Without Recourse-A Banker Designated as Payer Accepted (Date)Payable at Bank of CITIC, New YorkFor A Co(Signed) -Referee in Case of Need To: A Company In case of need refer to ABC Company, 129 Buffee Street, London-Notice of Dishonor Excused or Protest WaivedNotice of Dishonor excusedFor B Company(Signed) -Without RecourseWithout Recourse to usFor B Company (Signed) (3)Acts of a bill of exchangeIssuance Endorsement Presentment Acceptance PaymentDishonor, Notice of dishonor, protestRecourse Acceptance for honor supra protest Guarantee DiscountingIssuanceA. Liability of drawers: By drawing the bill, the drawer commits himself to the following: -The draft will be duly accepted or paid on presentment, and -if the draft is dishonored, the drawer will compensate the holder or any endorser for any loss suffered B. To issue a draft comprises two acts to be performed by the drawer: To draw and sign a draft To deliver it to the payeeEndorsementA. Liability of endorsers -the draft will be duly paid upon presentment, and -if the draft is dishonored, he will compensate the holder who is compelled to pay the draftB. Features of Endorsement -it is an act of negotiation -Prerequisites for a valid endorsement Should be normally effected on the back of a draft and signed by the endorser; must be made for the whole amount of the draftC. Four kinds of endorsement -Blank endorsement -Special endorsement -Restrictive endorsement -Conditional endorsement-Blank endorsementAn endorsement in blank is one that shows an endorsers signature only and specifies no endorsee. It is also called a general endorsement. A draft so endo