If the commercial ticket expires for more than two years, can the ticket holder still recover the ticket payment? Recently, friends from many banks in the bill circle have come to consult a common problem encountered in Beizi's practice: the bearer holds the bank acceptance draft that has passed the maturity date of the bill for 2 years to collect, how should we deal with it? What are the grounds for such processing?
If the commercial ticket expires for more than two years, can the ticket holder still recover the ticket payment?
To this end, Beizi carefully sorted out the legal provisions and analyzed the practical handling methods for your reference.
Analysis of legal rules
The right of the note shall not be exercised within 2 years from the maturity date of the note! The right to the note will be extinguished!
Article 17 of the Negotiable Instruments Law stipulates that "the right of the negotiable instrument shall be extinguished if it is not exercised within the following period: (1) the rights of the holder against the drawer and acceptor of the negotiable instrument shall be two years from the maturity date of the negotiable instrument." ”
What is a Bill Right? How does the bearer need to exercise it within 2 years?
Article 4 of the Negotiable Instruments Law clearly stipulates: "The right to negotiable instruments as used in this Law refers to the right of the holder to request payment of the amount of negotiable instruments from the debtor of the negotiable instruments, including the right to request payment and the right of recourse. ”
Therefore, if the holder does not exercise the "right to request payment" (i.e., prompt payment, entrustment) to the acceptor within 2 years from the maturity date of the instrument, the holder has the right to the instrument on the instrument will be extinguished. That is, the bearer can no longer claim the "right to request payment" on the bill to the bank.
Although the bearer loses the right to the instrument, he still enjoys the civil right - "the right to claim the return of benefits"
Article 18 of the Negotiable Instruments Law stipulates that "if the holder loses the right to the negotiable instrument due to the expiration of the statute of limitations for the negotiable instrument or due to the lack of matters recorded in the negotiable instrument, it still enjoys civil rights and may request the drawer or acceptor to return its interest equivalent to the amount of the unpaid negotiable instrument." ”
Although the holder did not exercise the "right to request payment" in time, resulting in the loss of the right to the instrument, the law still protects the holder's civil right "the right to claim the return of benefits".
The "right to claim the return of benefits" here is not a "right to negotiable instruments", but a right stipulated in the Negotiable Instruments Law, which is a civil right, so the "issue of the statute of limitations for civil rights" will arise later.
If the commercial ticket expires for more than two years, can the ticket holder still recover the ticket payment?
The right holder of the "right to claim the return of benefits" is the bearer, and the obligor is the acceptor or drawer who receives actual benefits.
If the acceptor (bank) has received the drawer's bill on the maturity date of the bill, then the acceptor (bank) should bear the obligation of "benefit repayment" to the extent of the bill received, how much the bill is received, and how much the bill is repaid.
Analysis of physical operations
The bearer reminds the bank that the payment due date is more than 2 years of the bank, and the accepting bank should not pay the bill!
If the bearer is holding the bill for more than 2 years to the acceptance bank to prompt payment (holding the collection voucher and the bill for entrustment), Beizi believes that the acceptance bank should not pay the bill.
Because the prompt payment is the right to the instrument, this time has been lost, the holder to exercise the right of the instrument, the acceptance bank should not accept, should not pay!
The bearer holds a silver note with a maturity date of more than 2 years and other evidence, and asks the bank for "return of benefits", and the accepting bank should theoretically pay! But it probably won't be done in practice!
The bearer is very aware of the law of negotiable instruments and knows that he has lost the right to the negotiable instrument, and the bearer can not exercise the "right to request payment" at this time. Therefore, the bearer claims civil rights to the acceptance bank and exercises the "right to claim the return of benefits".
However, the accepting bank has indeed received the drawer's bill on the maturity date of the bill (the basic business process of the general acceptance bank is to receive the bill on the maturity date of the bill and put it into the "remittance account" to be paid), and at another time after the maturity date of the bill reaches 2 years (or 3 years or 4 years after the maturity of the bill), the bill will be transferred to the "non-operating income account" and become one of the income of the accepting bank. Therefore, the accepting bank is the beneficiary.
Therefore, theoretically, the acceptance bank verifies that the "bearer" who issued the "benefit return request" is indeed the legal holder, and it can be verified that it originally enjoyed the right to the instrument, and the accepting bank should theoretically perform civil obligations to the bearer and return the benefits to it!! But......
In practice, the accepting bank will require the "bearer" to sue itself!!
The reason for asking the bearer to sue the bank is: to seek profit and avoid disadvantage!
If the commercial ticket expires for more than two years, can the ticket holder still recover the ticket payment?
When the holder still enjoys the right to the instrument (within 2 years), the acceptance bank receives the prompt payment and redeems the bill, which is the legal obligation of the acceptance bank under the bill law! All these operations are carried out on the basis of a formal examination (authenticity, continuous endorsement, and flawless record) of the bank's operational department, which has the right to decide on the payment of the bill.
However, when the maturity date of the bill exceeds 2 years, the holder has lost the right to the bill, and now claims the civil right (the right to claim the return of benefits) to the accepting bank, the bank operation department will inevitably request the support of the bank's legal department and ask the legal department to determine whether the benefits can be returned according to the law. This is because this is beyond the scope of the operational department's formal review of the rights of the bill.
And the bank's legal department will face a bunch of substantive scrutiny issues:
1. Is the right holder who initiates the "interest return request" the real right holder?
2. Is there any defect in the rights of the right holder? Are the rights lawfully acquired?
3. Are there any other rights holders who claim again?
At this time, the accepting bank will encounter other problems:
1. If the drawer did not pay the ticket in full at that time, only 50%, even if the accepting bank agreed to return it, but only 50% of the ticket was returned, the bearer may not agree.
2. If the legal department or business department agrees to pay, will there be follow-up responsibility review issues (internal audit, external audit accounting, regulatory inspection, etc.), and whether there is a problem that the substantive review is not in place?
Therefore, seek the advantages and avoid the disadvantages! The acceptance bank, more precisely the legal department and operation department of the acceptance bank, will require the "bearer" to sue the bank in the court and confirm the civil rights through the substantive review of the people's court.
The accepting bank pays the bill based on the judgment of the court, and all the departments of the bank do not have the responsibility to review it, and the bank bears up to half of the litigation costs (because the court finally decides that the bank loses the lawsuit and the benefits are returned!). In the case that the bank loses the lawsuit, the court will require the bank to bear a certain amount of litigation costs as appropriate, but because the bearer is also at fault, it may bear half of the litigation costs), and the cost of litigation costs, the executive department of the accepting bank is willing to bear, which can save a lot of follow-up trouble!
If the commercial ticket expires for more than two years, can the ticket holder still recover the ticket payment?
The issue of the statute of limitations for the bearer
If the bearer holds a silver ticket with an expiration date of more than 5 years and asks for "return of benefits", theoretically, the holder has lost the "right to win the lawsuit", and the people's court will not help you get the ticket back!
Civil rights are subject to the "statute of limitations" for general creditor's rights in civil law, and when the right holder exercises the right to claim after the expiration of the statutory limitation period, the people's court will no longer protect it, that is, it will lose the right to win the lawsuit. This is to urge right holders to exercise their rights as soon as possible.
The first paragraph of Article 188 of the General Provisions of the Civil Law, which came into force on October 1, 2017, stipulates that "the limitation period for filing a request to the people's court for protection of civil rights shall be three years. Where the law provides otherwise, follow those provisions. ”
Therefore, the holder of the bill maturity date of more than 2 years from the day, enjoy the civil right "right to claim the return of benefits", but if the holder does not exercise this civil right within 3 years after enjoying this civil right, it will exceed the statute of limitations, will no longer be protected by the people's court.
Therefore, the time when the commercial bank transfers the bill from the "remittance account" to the "non-operating income account" should be 5 years after the maturity of the bill.
In addition, the statute of limitations also has circumstances such as suspension, interruption, and extension of the statute of limitations, as well as various protection issues in the practice of court judgments.
Summary:
1. If the bill expires for more than 2 years, the acceptance bank will not pay;
2. If the bill expires for more than 2 years and asks for the return of benefits, the accepting bank requires it to sue itself before paying;
3. If the bill expires for more than 5 years and requests for the return of benefits, the people's court cannot protect it!
If the commercial ticket expires for more than two years, can the ticket holder still recover the ticket payment?
Ticket holders are reminded to file payment as soon as possible!
Source: Beizi Lun
(Tianxiatong Commerce - your personal bill expert, the leader of bill service, no longer confused in the face of commercial bill financing)