| Letter of credit (L/C) as one of the international trade settlement methods has a very long history, but the credit is truly universal in the global scope, and in the course of international trade plays an important role only100years, but the first bank payment guarantee credit incomparably superior to other trade means of payment in the competition. Although international trade using the letter of credit on all parties benefit, however, credit is not possible to avoid all risks, the abstract independence is the essential characteristics of credit, as long as the letter of credit documentation consistent with surface beneficiary, bank should be acceptance or payment. This leaves the machine while to criminals in practice; they often use the operating mechanism of credit fraud, defrauding bank payment. The particularity of the International Chamber of Commerce in consideration of the letter of credit fraud, not the provisions of such problems, but its left to national law to resolve.The people’s Bank of China issued a "domestic letter of credit settlement of letters of credit" is defined as the issuing bank at the request of the applicant in accordance with the prescribed by the terms and conditions of the credit, in accordance with the documents payment commitment. Combined with the mainstream view, scholars now generally recognized, the letter of credit is the bank to make payment conditional commitment, namely bank according to applicant’s request and instructions issued by the beneficiary, to have a certain amount and in a certain period of time by written documents stipulated documents the promise to pay. The most complete legal documents should belong to the Supreme People’s Court issued in2005"on Several Issues concerning the trial of the letter of credit disputes provisions" of China’s credit card fraud provisions, the provisions of the way to cite the fraud of letter of credit.Determination of the fraud of letter of credit standards including:subject, object, subjective standard and burden of proof. For credit card fraud in the definition of subject, our country adopts the narrow views, namely fraud must be the beneficiary itself acts instead of third human behavior. That letter of credit fraud beneficiary’s fraud intentionally, the issuing bank only subjective malice in the beneficiary fraud, and fraud for causing substantial damage, can make use of the principle of fraud exception payment under the letter of credit amount. Determination of the objective standard of fraud, China’s "Regulations" the Supreme People’s Court on Several Issues concerning the trial of the letter of credit disputes of the eighth lists the most common letter of credit fraud, finally adopted a flexible approach,"the provisions of other credit card fraud case". But flexible approach this legislation giving judges too much discretion, may lead to the same case judgment standard is not unified. The general principle of the allocation of the burden of proof is "who advocates, who is the burden of proof. But in some specific cases, difficult or impossible to provide evidence of possible the claiming party objectively, if apply equally to the allocation of the burden of proof of the general principle, it may be because of the burden of proof on the difficulties caused the legitimate rights and interests cannot be protected; the unfair situation people can escape responsibility. In the letter of credit fraud exception to the principle of fraud, intentional burden, should be in accordance with the principle of inversion of previously allocated to the other party to bear, if not proof of the other party or with the legal relationship of the performance of third related basic contract do not have a deliberate fraud, is presumed or have the legal relationship with the performance of the third relevant based contract has the deliberate fraud.The letter of credit fraud exception is the relief of the letter of credit fraud. The principle of fraud exception theory embodies the protection of the interests of bona fide third person, requirements in the fraud occurs not only to commercial interests as the only goal, and balance the interests of the parties, the parties are in the legal status of the. Credit card fraud exception to the principle of supplementing the legal loophole in the law function, lack or not perfect circumstances, can the corresponding rules to be added. In the credit transaction, to protect the legitimate rights and interests of parties, the law also does not encourage the use of letter of credit form of fraud violates the principle of good faith. If applicable, the independence principle of letter of credit will lead to credit the party was not fair, is not conducive to the protection of the interests of all parties and the normal trading order, we should exclude the application of this correction, due to application of the independence principle of letter of credit for the lack of protection of the interests of the buyer. But the letter of credit fraud exception principle is also applied in our country’s problems, improve the credit card fraud exception to the principle, in order to ensure that the fraud exception system of our country credit justice in general. |
