A Study On The Law Of Independent Guarantee In China: Its Current Situation And Enrichment

Under the background of the economic globalization and internationalization, the guarantees have become an indispensable partner of the flow of capitals gradually and they play a more and more significant role in commercial transactions. For these guarantees in domestic transactions, on the ground of the uniform legal system and jurisdiction, transaction costs and relative legal problems won't hinder their application in practice. However, in the face of the tremendous transaction cost, as well as law conflictions, the domestic guarantees can't work effectively in international commercial transactions as they do in domestic deals. On the contrary, they are worthy of an outright attention and prudent arrangement. While the independent guarantee, as an innovative guarantee, combined with functions of the traditional guarantees and merits of independence, have several particular advantages. Therefore, it has developed well since 1960s when it emerged, and it has become a profitable and important service provided by banks all over the world.The thesis is constructed in accordance with the following outline: at first, the author illuminates the fundamental issues of the independent guarantee such as definitions, sorts of forms, different classifications to lay a sound foundation for further research. Secondly, to identify the appropriate position of the independent guarantee in the civil and commercial law system as well as its interactive relations with other relative legal rules. Furthermore, it is a comprehensive analysis of the problems at issue in theory in China in search of the evidences of its reasonableness. Then, it is a complete research about our legislation and judicial situation in reality. On the ground of a detailed research integrated practice with theory, the author tries to offer some suggestions to improve our independent guarantee rules.In chapter one, it is a general introduction to the independent guarantee. In this part, the author focuses on its emergence,development process, definition ,content and variant forms.In chapter two, it is a study about fundamental theories involved in independent guarantee consisting of the definition of Principle of Independence, the relation between Principle of Independence and Principle of Subordination as well as its relation with Principle of Abstraction.In chapter three, the author tries to analyze the legislation situation of the independent guarantee, and concentrate on the theoretical problems covering the Principle of Autonomy, the protect of guarantors and so on.In chapter four, based on these elected cases of the independent guarantee in our country, the author focuses on our judicial practice and endeavors to analyze the troubled issues in reality.In chapter five, the author comes to discuss how to enrich our independent guarantee rules and offers some suggestions about constructing the Fraud Rule of independent guarantee.In the end, the author summarizes his views in this thesis and comes to a conclusion.