问题 问答题

2002年6月10日,西岳经贸公司向中科物资供应公司购买价值50万元的特种钢材,同时开出一张50万元的汇票并委托该市商业银行付款;中科物资供应公司持票后到特种钢厂进货;将该汇票背书转让给该钢厂,钢厂因为业务关系又将该汇票背书转让给西金焦化厂。 西金焦化厂收到汇票后,于2002年7月10日向商业银行提示承兑,12日该银行作出承兑,西金焦化厂收到商业银行的承兑汇票后,由于厂内部进行重大调整,没有在规定期限内提示付款。待整顿结束后,汇票到期日已超过20天。西金焦化厂向商业银行提示付款遭到拒绝,理由是已超过提示付款期限,西金焦化厂向其他债务人追索,同样被拒绝。无奈之下,西金焦化厂将付款人市商业银行及出票人西岳经贸公司诉至法院,要求付款人或出票人支付贷款及合理费用。恰在此前,法院已宣告西岳经贸公司破产。 要求:根据以上资料,分析回答下列问题: (1) 市商业银行以汇票过期为由拒绝西金焦化厂的付款请求有依据吗请说明理由。 (2) 其他债务人对西金焦化厂追索权的拒绝是否合理并说明理由。 (3) 人民法院应如何处理该项诉讼

答案

参考答案:

解析:(1) 市商业银行不能以汇票过期为由拒绝西金焦化厂的付款请求。因为承兑人是汇票的主债务人,所负责任为绝对责任,即使持票人未在法定期限内为付款提示,承兑人仍应负责。市商业银行作为承兑人,应该遵循该规定,承担向西金焦化厂付款的义务。 (2) 其他票据债务人对西金焦化厂追索权的拒绝是正确的。因为定日付款、出票后定期付款或者见票后定期付款的汇票,自到期日起10日内向承兑人提示付款。如果持票人未在上述法定期限内为付款提示的,则丧失对其前手的追索权。本例中,持票人西金焦化厂提示付款的期限自票据到期日已超过20天,根据《票据法》的规定,则丧失了对其前手的追索权,因此,其他票据债务人对西金焦化厂追索权的拒绝是正确的。 (3) 人民法院应判定付款人市商业银行向持票人西金焦化厂支付票款及合理费用,因为市商业银行已承兑该汇票,即应承担无条件付款的义务。由于出票人破产,付款人在承兑该汇票时并不知道出票人破产,根据《破产法》的有关规定,债务人企业作为票据出票人或背书人被宣告破产,而付款人或承兑人不知其破产事实而付款或承兑,因此产生的债权为破产债权,付款人或承兑人为债权人。因此,付款人市商业银行付款后,即成为西岳经贸公司的债权人,将其向西金焦化厂支付的票款及合理费用向人民法院申报债权。

单项选择题


Filled with the euphoria of victory and dreams of their first Big Ten title in 11 years, Penn State University students rushed the field as time expired in their win over Ohio State. In the chaos that followed, the campus police struggled to keep control, and identifying the overzealous fans seemed impossible, impossible, that is, until the police department turned to a new crime-fighting tool: facebook. com.
Penn State officers had warned the students in advance last October that crossing over from the stands was a safety hazard and would not be permitted. When the rules were broken, a quick search online revealed the facebook, com photo album "1 rushed the field after the OSU game and lived." The album creator had even helpfully tagged all of those involved — offering the campus police an easy way to issue stem warnings. "It was really dangerous and not acceptable behavior," says Tyrone Parham, assistant director at the PSU police. "We needed to send a message. We searched the group, contacted the individuals and said that this was not tolerable behavior."
Long a student favorite and the seventh most-trafficked Internet site, facebook. com has found a new following — those who wear blue. Traditionally, campus police forces have followed noise reports in their attempt to keep Saturday nights safe. But the advent of social networking sites is starting to revolutionize campus detective work.
George Washington University police department chief Dolores Stafford claims, "Facebook exists and can certainly be a tool, but we’re not out there looking at the site." Students at the college, however, are not so sure. When rumors flew that campus cops were using the student social network to infringe their right to party, GWU students decided to exact revenge. In a carefully executed plan, students filled facebook, com with chatter about a raging party they were throwing, hoping the police would be watching. They were not disappointed. When the officers arrived, they found shots glasses brimming with chocolate cake, Beirut cups filled with frosting, and party-goers loaded up on sugar rather than alcohol.
While the GWU police deny using the Internet to find the party, the students felt vindicated. "Cake Party" attendee Kyle Stoneman comments: "From a larger standpoint, there’s nothing immoral or illegal about the police using facebook. com. I guess they’ll play their game, we’ll play ours, and we’ll see who wins."
For college police forces, however, the issue is about more than winning. Instead, they try to find that delicate balance between upholding the law (read: preventing underage drinking) and maintaining good relations with the students (read: turning a blind eye). "It’s a never-ending struggle," says Fisher College Chief of Campus Police John McLaughlin. "Like any other college and university, we want this to be as open of a relationship as possible. We don’t want to be too obtrusive and we also don’t want to be too strict. It requires real diligence."

Which of the following best describes facebook. com

A.(A) It is a popular website with the students.

B.(B) It is crime-fighting tool invented by the police.

C.(C) It is an electronic book of strict campus regulations.

D.(D) It is a virtual party held on the Internet.

多项选择题