Study On The Legal Issues Of Independent Guarantee In International Commercial Transaction

Ever since independent guarantee came up in 1960s, it rapidly spreads not only in internal commercial affairs but also international ones. Different from traditional subordinate guarantee due to its unique characteristics, functions as well as values, independent guarantee is winning more and more international recognitions and also showing significant vitality and development space. However, contrary to traditional guarantee system, independent guarantee is really a kind of new phenomenon, which brings about so much argument and also tells us that there still exist so many legal issues in the area of international commercial affairs. Therefore, this thesis tries to make an analysis as well as a research on these legal issues which are brought by the theory and practices of independent guarantee, in the hope of giving out some instructions for the construction of independent guarantee system in China.Six chapters can be found in this thesis, they are as follows:Chapter 1. Basically theoretical research on independent guaranteeFocusing on basically theoretical issues, this chapter, regarded as a footstone of the independent guarantee system, makes pretty instructive influences on the developing direction of independent guarantee in international commercial area. Firstly, this chapter tries to look back upon the appearance and the further development of independent guarantee, and also makes an analysis on different application forms as well as its degree in different countries, intending to reveal the developing tracks where independent guarantee is gradually recognized by the international society. And then, you can catch sight of a research on the definition of independent guarantee, including an understanding of independent guarantee, forms of independent guarantee in international business world, a contrast between independent guarantee and other systems as well as judgmental standards. The author clings to an idea that a uniform recognition of this specific definition has not been reached up to now, not only in theoretical or practical world, and many forms of independent guarantee can also be found. On this ground, this thesis makes an analysis and also draws a conclusion on the magnitude and characteristics of independent guarantee in the legal system, and has an view that independent guarantee should be possessed of independent legal status, which should be quite different from the legal characteristics or functions of subordinate guarantee. On the basis of a contrast with other systems like documentary letter of credit and currency in circulation, the author puts forwards the very standards of independent guarantee. Later, this chapter comes up with a conclusion on the legal sources of independent guarantee, such as international legal sources and internal legal sources. At last, some personal thoughts on the specific forms of its international legal sources, causes for the birth of international customs and international conventions, and also some other issues on the order among them as well as their application can be seen.Chapter 2. Functions as well as value of independent guaranteeThis chapter first makes an analysis on the unique and diversified functions of independent guarantee, clinging to the belief that independent guarantee can not only offer guarantee, but pay off debts, avoid risks, evaluate credit, consign and finance, and also serves as a testimony. After that, the author makes an analysis on the special value of independent guarantee, such as keeping a balance among contradictive interest, realizing the dream of justice, constructing a proper order, making sure of the security of interest, saving social cost, earning economic interest, paying respect for the parties and also evincing previous value like adequate freedom which is rather different other legal systems, and this is why independent guarantee greatly charms thousands of businessmen.Chapter 3. Legal relationship in independent guaranteeThis chapter first analyzes the parties in various forms of independent guarantee, which composes and important premise as well as basis of the parties’ rights and obligations which make up of the main content of legal relationship in independent guarantee, and then, a research on the qualification of the warrantor who is an important party follows. Here we should know that the warrantor in independent guarantee is supposed to have the basic qualifications of a common warrantor, and also some others abilities which are particularly suitable for this kind of guarantee.Chapter 4. Some legal issues in performing independent guarantee contractsWith some remarkably practical characteristics, this chapter contains not only some substantive issues in performing independent guarantee contracts, but also some procedural ones which can be can not be avoided. On the former side, this chapter firstly makes an analysis on the contracts’establishment and coming into force, which reads that only when those subordinate conditions are satisfied can independent guarantee contacts come into force. Then, a prescription about the modification of an independent letter of guarantee and the transference of the guarantee rights, and particularly, this chapter makes a more detailed analysis on these two forms. Further, it tells the readers the very meaning of "grace or payment" and reasons why this request comes up. At last, this thesis also makes an analysis of those legal issues in the various terminative contexts of independent guarantee contracts.Chapter 5. Improper indemnities risks and the corresponding remedy mechanism of independent guaranteeIn international business, a great number of risks may come up in the application of independent guarantee, and this improper indemnity is one of them. This chapter firstly makes a research on the improper indemnities risk which may exist in the application of independent guarantee, consisting of causes for the appearance of the improper indemnities risk, the definition of improper indemnities, some internal as well as international regulations on improper indemnities and so on. At last, the author makes a further study on some specific measures which can be used to deal with improper indemnities.Chapter 6. The construction of independent guarantee system in ChinaUp to now, we can not find a specialized piece of legislation on independent guarantee, and we can only learn partial recognition of independent guarantee, which only makes recognition of guarantees offered by domestic companies to foreign ones and also those done by foreign companies to domestic ones, instead of guarantees made between domestic companies. In spite of some rational reasons, this is still supposed to be changed in the background of economical globalization. This chapter firstly makes an analysis of the current situation and those potential problems in independent guarantee in China, and then, some personal suggestions on the necessity, guiding ideology as well as specific methods of independent guarantee system and the writer also gives a second thought on this system in the background of global financial crisis.