CAJ | 학술논문

长期以来，票据法理论除强调票据行为的形式要件外，还把票据能力和意思表示作为票据行为的实质要件。但是，票据能力和意思表示若具有实质要件意义，则与票据行为的要式性、文义性、无因性、独立性等特征相矛盾，也与促进票据流通的票据法理念相冲突。从票据法及票据行为的个性考虑，票据能力欠缺和意思表示瑕疵仅能作为一种抗辩事实，而不能以此否定票据行为的效力，即票据行为上根本不存在所谓的实质要件。
장기이래，표거법이론제강조표거행위적형식요건외，환파표거능력화의사표시작위표거행위적실질요건。단시，표거능력화의사표시약구유실질요건의의，칙여표거행위적요식성、문의성、무인성、독립성등특정상모순，야여촉진표거류통적표거법이념상충돌。종표거법급표거행위적개성고필，표거능력흠결화의사표시하자부능작위일충항변사실，이불능이차부정표거행위적효력，즉표거행위상근본불존재소위적실질요건。
Theoretically, an act on commercial instrument is one of legal acts, so apparently the requirements of a legal act should naturally be the ones of an act on commercial instrument. That is to say, theory on commercial instrument law has all along stressed the formal requirements of an act on commercial instrument, and has also deemed the subject requirement, the requirement of declaration of intention and other relevant requirements as the substantive requirements of an act on commercial instrument, which can be specifically described as the requirements of capacity of commercial instrument and of declaration of intention. However, if capacity of commercial instrument and declaration of intention really have the significance of the substantive requirements, then it will contradict the characteristics of formality, literal meaning, non-causation principle and independent character of an act on commercial instrument, and also conflict with the idea of commercial instrument law concerning the promotion of the negotiability of commercial instruments. Considering the specific characters of commercial instrument law and an act on commercial instrument, the lack of capacity of commercial instrument and the defect of declaration of intention can only act as one of defense causes, we, therefore, should not deny the validity of an act on commercial instrument, i.e. there is no so-called substantive requirements of an act on commercial instrument at all.