On The Independent Undertaking

The independent guarantee has been widely used in the fields of international fiance and trade,developing in business and banking practice.Independent guarantee system is a special guarantee system of which the warrantor promise to the beneficiaries to unconditionally refund all the guaranteed debts in case that the warrantee fails to fulfill the debts,without any right of defense possessed by warrantors in common guarantees. Although there are still various understandings in academic field to this model,it has been applied widely in international trade for the sake that it can make up the loophole twined with traditional guarantee and the related international practice and legislation are tending maturity and perfection.Up to now,the guarantee law regime and jurisdiction of China do not recognize the independent guarantee in domestic economic activities.For the civil law research,it is only the start of the exploration of independent guarantee;it is not matching the practical development of the independent guarantee.For the foresaid purpose,this article makes some rough discussion and exploration of this unique system.The structure of this article is as follows.Chapter I analyzes the background of the independent guarantee on the basis of its widely application in international trade.Then, research its conception ,characteristics and legal relations.Chapter II focuses on the international legislation concerning independent guarantee and introduces the contents of related international customary practice,conventions.Chapter III researches mainly the basic structure ,two parties rights and obligations of the demand independent guarantee and the standby letter of credit. At the same time, chapter III researches the difference between the two conceptions. ChapterⅣresearches mainly the stipulations of current law, judicial interpretation,department regulations and internal rules of banks, and holds the lack in legislation leads to the uncertainty of practice.In consideration of the discussions about independent guarantee in international community for nearly half century, we should use international customary practice and conventions for reference to establish the system of independent guarantee in China.On the basis of the analysis of the four chapters, Chapter V puts forward some legislative suggestions and holds that we should establish system of independent guarantee in China through making clear the legal application of independent guarantee, stipulating independent guarantee more operatively and acceding to related international conventions.