论票据抗辩制度的修订与完善——从一件票据返还请求权纠纷案件引起的思考

On the Revision and Perfection of Bill Demurrer System

票据抗辩可以表述为:债务人为免除票据载明的支付义务而针对票据的客观真实性、出票行为、背书行为、票据关系人等实体问题以及持票人主张权利的程序问题提出的一切异议的总称。票据抗辩从不同层面和角度可以分为主动抗辩和被动抗辩、程序抗辩和实体抗辩、对人抗辩和对票抗辩、绝对抗辩和相对抗辩。票据的无因性是相对的,即票据基础关系仅限在出票人转让票据时与收票人之间有要求,以及有直接债权债务关系的票据当事人之间有要求。建议对《票据法》第10条作相应的修改。关于票据返还请求权纠纷的管辖问题,存在法律和司法解释的冲突,建议将《规定》中关于票据纠纷管辖问题修改为与《民事诉讼法》第27条一致的规定,或将《规定》第7条修改为:"因票据返还请求权纠纷提起的诉讼,由票据支付地或者被告住所地人民法院管辖;其他非票据权利纠纷提起的诉讼,依法由被告住所地法院管辖。"

The bill demurrer can be stated as ： the general term of all objections the raised by the debtor in order to dispense the payment obligations indicated in the bill, according to the substantive problems such as the objective reality, the behavior of issue and endorsement, the parties of the bill and the procedural matter of the holder＇s right to claim. Bill demurrer from different levels and an gles can be divided into active and passive demurrer,procedure and entity demurrer,demurrer on person and on bill, absolute and rela tive demurrer. The non causative nature of bill is relative, namely the basic relationship of bill only exiting there are requirements be tween the drawer and the check taker when the bill is transferred, as well as there are requirements among the parties to a bill who has a direct creditor debtor relationship . The author suggests making a corresponding modification in the 10th article of ＂the Bill Law of the People~ Republic of China＂ （hereinafter referred to as the Bill Law＇in short）The jurisdiction problem of bill returning re quirement dispute, there is conflict between law and judicial explanation, suggest that the ＂regulations on some issues of the trial of bill dispute cases＂ （ hereinafter referred to as ~egulations~） on the bill jurisdiction problem is modified according to the twenty seventh arti cle of ＂Civil Procedure Law＂, or modifying the seventh article of regulations to ： ＂A lawsuit brought on a bill dispute shall be under the jurisdiction of the people~ court of the place where the bill is to be paid or where the defendant has his domicile, other lawsuits not brought on a bill dispute shall be under the jurisdiction of the people~ court of the place where the defendant＂.