Study On Establishing The System Of Independent Guarantees In China

In international business transactions, People always require all kinds ofguarantees for ensuring the performance of obligations. From World War II, due tothe expanding scale of international business transactions and rapid development ofinternational trade, the traditional guarantees can not satisfy the needs of moderninternational business transactions for many reasons. So, a new type guarantee isdeveloped from practice of bank. Generally it is called independent guarantee orbank independent guarantee for distinguishing from traditional guarantees. Independent guarantee is used widely in international trade. It is also used inchina more and more. Comparing with legislation and practice abroad, the system ofindependent guarantee in china is not standard and the guarantee law and relatedjudicature interpretation do not stipulate definitely, just admit the legality ofindependent guarantee. The lack of legislation leads to many problems in practice.Establishing the system of independent guarantee in china is the needs of socialeconomy.The introduction of the thesis puts forward the urgent needs for establishing thesystem of independent guarantee in china. Chapter I analyzes the general principle ofindependent guarantee, and research its characteristics, forms, terminology and legalrelations. Bank independent letter of guarantee and standby letter of credit are twoforms of independent guarantee for their similar characteristics and legal relations. Chapter II researches mainly the stipulations of current law, departmentregulations and internal rules of banks, and holds the lack in legislation leads to theuncertainty of practice. In consideration of the discussions about independentguarantee in international community for nearly half century, we should useinternational customary practice and conventions for reference to establish thesystem of independent guarantee in China. Chapter III focuses on the international legislation concerning independentguarantee and introduces the contents of related international customary practice,conventions and their status in international law respectively. The condition forpaying, fraud exception,remedy forms and reasonable check obligations of guarantorare paid more attention especially. On the basis of the analysis of the obligations and rights of all parties inindependent guarantee in Chapter III, Chapter IV put forward some legislativesuggestions and holds that we should establish system of independent guarantee inChina through expanding the interpretation of Article 5 of "Law of Guarantee",making clear the legal application of independent guarantee, stipulating independentguarantee more operatively and acceding to related international conventions.