我国票据付款制度完善探析

Investigation on the Improvement of Domestic Bill Paid System

票据的付款,是票据付款人依法向票据的持票人支付票据金额,以消灭票据关系的行为,这是一种"准票据行为";在我国,票据的付款人主要为银行,付款人应当向票据的真正权利人付款,因此其付款时必须履行审查义务。依票据法一般理论及各国票据法的规定,付款人只负有形式审查义务,但我国最高人民法院的司法解释却规定付款人必须承担实质审查义务。这一规定不仅与票据法理论相违,与各国规定相背,与我国票据法的规定相冲突,而且严重损害了票据的流通,理应予以纠正。在付款人进行善意付款后,应在付款人与被伪造人之间合理确定最终的风险负担。

Bill paid refers to the act that the drawee pays the amount of bill to the bill holder according to law,and then end up the bill rela- tion.It is a kind of'quasi act on commercial instrument'.In our country, the main drawee is the bank,and as the payment should be done to the real obligee of bill,the drawee must perform its screening obligation when pay- ing the bill.According to the common theories of Commercial Instrument Law and the prescriptions of different countries,the drawee only has the obligation of formal screening.However,the judicial interpretation of our Supreme People's Court prescribes the substantial screening obligation for the drawee,which not only conflicts with the common theory of CIL,but also contradicts with the prescriptions of many countries,as well as China. Moreover,it seriously damages the circulation of bill,and should be cor- rected.The final risk bearing should be reasonably established between the drawee and the falsified party,after the former has paid the bill in good faith.