On Daoqiantidan Fraud Exception

If will fraud exception rule apply to Antedated B/L? That is a very important thesis.The application of the fraud rule on the anti-dated B/L cases in the question of how to find the balance to keep the smooth running of L/C meanwhile to hold up fraud in L/C. The internationality of L/C demands us to handle such cases from the view of the whole world, to pay attention to the judicial trends of ICC, to borrow the effective measures taken by other countries in considering the reality and law status of China, so that our laws concerning this issue not only track the orbit of the international community also suit our reality.When hearing L/C fraud cases, courts in USA and UK always respects the principle of independence of L/C, only in the very exceptional cases that the court would apply the fraud rule, which is very few. On the matter of antedated B/L, UK court respects it more than USA court does. Courts would consider all aspects of facts, such as whether the person who conducts antedating is of ill intention, whether the evidence is clear enough to prove the existence of fraud, whether the fraud is material, whether the antedating has so vitiated the entire transaction that the legitimate purposes of the under lying contract would no longer be served, whether the bank is acknowledged of the fraud, whether it successfully passes the balance of convenience, whether it affects the interests of a bona-fide third party, etc.We can't just generalize about this issue in China, and can't just borrow the experience of USA and UK, but holding that circumstances alter cases to study out the regulations according to our social reality. With Chinese serious and special fraud reality, it's unable to hold up the flourishing fraud to rigidly adopt the high proof standard of UK, on the contrary, it may encourage fraud. By contrast, the standard of"material fraud"of USA is more suitable to China. Specifically, the ill intention of the antedating actor, the affect to the realization of the contract by antedating, the irreparable damages it may cause, social affect of the judgment ,and whether the judgment would favor international trade etc. Only thus can the commercial availability of L/C be exerted and the smooth running of international trade be maintained.