A Study On The Legal Issues Of Beneficiary’s Fraud Of Bank Guarantee

As a form of independent guarantee, bank guarantee has been widely used in international trade, which has promoted the development of economy. However, due to the independence characteristics of bank guarantee, beneficiary’s fraud often occurs, which has brought transaction risk to the parties. In order to play a better role of bank guarantee and reduce the loss caused by the fraud of beneficiary as far as possible, also balance the benefits between the parties, countries are actively looking for a variety of means of relief. Judging from the judicial practice of countries, they generally take the substantial standard when fraud is identified. There is also a defense right of fraud exception and temporary relief measures for the court to take when there is a fraud, such as conservatory attachment orders in the civil law countries and injunction in the common law countries.The guarantee law in our country does not stipulate bank guarantee or even independent guarantee, which is not consistent with the trend of widely used bank guarantee in the international community. The legislation of our country only provides the guarantee from dependency, the legitimacy of independent guarantee is not admitted. In practice, China only admits the independence of bank guarantee concerning foreign affairs and denies the independence of bank guarantee concerning internal affairs. The legislation of independent guarantee in China is just in the starting stage. And, for the problem of fraud, China carries on the general principle of identifying fraud and does not do deep research. It is rather pleased that the newly revised Civil Procedure Law has stipulated the behavior preservation system, which improved the remedies of fraud to a certain extent. But the provision is still lack of direction and not specific enough.Therefore, based on the comparative study of jurisprudence, legislation of Western countries and international conventions, the article does a research on the concept of bank guarantee, fraud qualitative, the establishment of defense right of fraud exception and the relief measures, trying to get a uniform standard reference for Chinese legislators, to provide some help for the improvement of the legal system of Chinese bank guarantee.