On The Legal Issues Of Ship’s Refund Guarantees

The ship’s refund guarantee has two kinds of performances:one is the bank guarantee which is the traditional performance. Now it is rarely applied in the practice, because it is harmful to the shipowner. The other one belongs to independent guarantee with the characteristics of being independent from the primary contract, irrevocability and so on. So it bears some particular advantages in the realizing of the legal claims of the creditor’s and becomes more and more popular in the ship trade. Now, it is the main credit guarantee ways.However, it lacks clear related rules in most of countries, especially about the refund guarantee manifests independent guarantee. The foreign cases and scholars have not formed widely accepted views. So the legal problems arising from the practicing are unavoidable. Thus, it is necessary and meaningful to start a systematic study on it.This paper is composed of six parts:The first part is overview. Through the analysis of the traditional guarantee and new dependent guarantee, it concludes the kinds, the reasons, legal relationships of the ship’s refund guarantee. Compared with the common contract, the ship’s refund guarantee is more complex, as it relates to many parties, included the shipyard, the guarantor, the owner and so on.The second part is the establishment problem of the ship’s refund guarantee. It is an important part of the practice of the ship’s refund guarantee. This part gives a clear introduction about the qualifications of the parties, approve procedures and register in the process. Also, it talks about how to make sure of the beginning time.The third part is the transfer problem of the ship’s refund guarantee. The ship’s refund guarantee has the function of financing because of the dependence. It illustrates legal consequences in the situations which includes transfer the right of claim and the right of earning. Also, this paper talks about the related actions of the guarantee bank and the financing bank.The fourth part is the legal risks of the ship’s refund guarantee. In the legal relationships of the ship’s refund guarantee, the guarantee bank bears the credit risks directly. This paper introduces the characteristics, resources, content of the risks. Also, it gives advices to solve the problems.The fifth part is the shipowner’s deceiving problem in the ship’s refund guarantee. The shipowner’s deceiving actions harms the interests of the guarantee bank and the shipyard. This paper gives a clear introduction about the reasons, performances, judicial protection and prevention.The sixth part is how to apply the law in the disputes related to ship’s refund guarantee. It analyses the application scope, international conventions, concerning foreign affairs. It is aimed to help the parties to apply the laws.