Independent Guarantees In International Trade Law And Applied Research

The independent guarantee has been widely used in the fields of international fiancé and trade, developing in business and banking practice. It is different from conventional substance guarantee and collateral guarantee as a new style of human guarantee. At present, most countries in the world have not proclaimed in writing and have diversified understandings in legal precedent and theory to independent guarantee .United Nations Convention on Independent Guarantees and Standby Letters of Credit, 1996 (has been effective in 2000) and ICC Uniform Rules for Demand Guarantees, 1992 are international documents on independent guarantees. Because the volume of independent guarantee business is very large between domestic finance institutions and foreign finance institutions and China is keeping up with the international practice especially after China entered WTO, Chinese banking and legal circles have kept a close eye on independent guarantee problems. However, there is not any article of independent guarantees in Chinese laws and explanations so far, even it is in passive attempt in business and banking practice. Essays on independent guarantees are mainly majored in contrast studies to other countries' independent guarantees institutions. The thesis emphasizes analyzing Chinese independent guarantees legislation in force and banking practice through comparative and illustrating approach, puts forward some questions and the author's proposals for independent guarantees legal provisions and manipulating. The essay develops as follows: At first, the essay reveals independent guarantees historical background and developing situation. After the Second World War, creditor is getting sterner to guarantee because the scale of international business is lager and trade mode is getting more varied and complicated. From 1970's, Independent guarantees have became the chief guarantee way and have been put to use widely. The change of international trade structure has played an important role in the develop of independent guarantees institution. Then the essay combs out the basic theory of independent guarantee system mainly including concept, legal relationship, character, identification and use in international economic and trade in Chapter Ⅱand Chapter Ⅲ. To escape speaking generally, the author emphasizes in analyzing the principal rights and obligations among international business parties in independent guarantee. Furthermore, the essay contracts the independent guarantees' legal characters and practice with standby letter of credits and collateral guarantees to obtain the basic difference of independent guarantor in the right of counterplea, recourse, subrogation and fraud exception. At lasts, Chapter Ⅵ studies Chinese independent guarantees legal provisions in force and analyses a specific case in detail to bring up some questions and three suggestions:A new formal independent guarantee law should be promulgated in conformity with the respect of the parties and the demand of the banking practice.China should enter into the UN convention on Independent Guarantees and Standby Letters of Credit to keep up with the international practice since United Nations Convention on Independent Guarantees and Standby Letters of Credit has been effective in 2000 and China had drawn up and discussed the convention.Our bank don't blindly do domestic independent guarantees and carefully do international independent guarantees business and deal with the contracts in detail for fear of serious loss before Chinese independent guarantees system is set up and regulated.