For Demand Guarantees And Fraud Research

The paper takes the demand guarantee and the fraud issues as the object of study, and uses related legal precedent and legislation to analyze the demand guarantees and fraud issues by identification of the fraud on demand guarantees, establishment of the exceptional principle of the fraud, its application in the practice and the judicial relief measures, in order to provide reference to the establishment of demand guarantees and improvement of the legal system in our country in regard to the demand guarantees. The paper expounds in four parts in addition to the introduction and the conclusion.The first chapter discusses demand guarantees'connotation and analyzes the structural type of the demand guarantees, legal relationship and applicable laws, to lay the foundation for the cause study on the demand guarantees beneficiary's fraud and the way of fraud.The second chapter discusses the possibility of beneficiary fraud in case of invalidity of basic contract, termination of basic contract and false breach declaration of the beneficiary; the paper puts forward that the occurrence of beneficiary fraud is relating to the excessively principled stipulation and ambiguity of the stipulation in addition to the demand guarantees characteristics. It is also relating to the fact that the each country takes its own way on the demand guarantees. Meanwhile, this paper also analyzes the major western countries and our country with the identification criteria for the demand guarantees beneficiary fraud and discusses the theoretical foundation of demand guarantees fraud's exceptional principle:"Fraud Makes Everything Invalid" and "Principle of Honesty and Credibility "The third chapter studies the judicial relief taken for the demand guarantee beneficiary fraud in western countries, and the factors to be necessarily considered when the judicial relief measures are taken; and based on the possible judicial relief measures that could be taken in the event of demand guarantee beneficiary fraud and reveals realistic issues that exporters in our countries have no time to initiate the judicial relief procedures when confronting the fraud and knowing the fraud after the implementation of URDG 758.The fourth chapter focuses on the demand guarantee fraud practice and the present status of legislation in China, and suggests to have a legal system of demand guarantee. This chapter considers that China should join the United Nations Convention on Independent Guarantees and Stand-by Letters of Credit at the right time; the paper also suggests that the People's Supreme Court expressly defines the legal position of the demand guarantee, establishes the fraud exception principle and introduces the judicial relief measures of act preservation so as to protect the legal rights and interests of Chinese exporters in the dry tree in the buyers market and to promote the benign, healthy development of our country's exportation.