Analysis On Fraud Exception Doctrine Of International Bank Independent Guarantees

In the modern theory of civil law, guarantees can be divided into guarantee for objects and credit guarantee. The former is achieved by a specific property of the debtor or the third party; the latter is also known as the human guarantee, which is to secure creditor claims by the credit. But due to the large difference of objects guarantee legislative between countries, which lead to conflict, bank credit guarantees came into beginning. Its main form is bank credit guarantees and standby letters of credit. It belongs to independent guarantee, and the maximum difference with traditional of secondary guarantee is that it’s different from the right of guarantee:the right of independent guarantee letter is very limited, as long as the beneficiaries of independent guarantee letter made payment requirements and the submitted of documents surface and insurance letter provides of payment conditions matched, guarantor was absolute on payment, and he does not have the right of defense as the debtor. The only chance is "fraud exception", that is, independent guarantor can provide the beneficiary had demanded payment by fraudulent, and the evidence is substantive, specific, and there is no doubt. And then he must apply to the Court to issue a ban or the adoption of protective measures and after they have been agreed, he had the right to refuse the payment.The thesis includes four parts:the first part introduces the meaning and the characteristic of the principle of fraud exception, and from the angle of law, economic and society to explain the principle, while applying to analyze its legal basis by jurisprudence. The second part which detailed comparative analysis on the two kinds of law systems, and on behalf of fraud standards of the state, international commercial organizations, either the International Convention for the independent bank guarantee, draw the conclusion:fraud should adopt the "substantial fraud" standard as well as the focus of some typical fraud by combination of both methods are defined. The third part introduces means of relief for the fraud. The independent bank guarantee fraud occurs in the practice frequently, and there is no unified international relief measure, from the judicial practice to analyze the commonly used relief means, such as a court injunction, preservation measures command and Mareva ban. The fourth part, based on the combination of the general theory and international practice of fraud exception principle, put forward a complete set proposal to the principle in our country, so the credit guarantee can plays an important role of diversified guarantee in China...