The Research Of Bank Independent Guarantees’ Issues

With the continuous development of international trade, both trading parties face greater risks than before. In order to safeguard the rights and to avoid risks better, trading parties will make use of credit grantee tools to ensure their own interests. In the early70s of the20th century, the new credit guarantee tools, independent guarantee developed in international trade practice. Because of the characteristics of independence and irrevocable nature, guaranteeing the conduct of trade and the interests of both sides, so ones it appeared, it had been highly appreciated by main trade body of the world, the scope and the amount of its application developing tremendously. Today, no matter in the non-trade financing field such as international goods sale or in the trade financing field such as international loans, independent guarantee is in widely application.Although the independent guarantee has been widely used in most of the world in different fields, there isn’t, a unified international convention or practice to standard the independent guarantee, leading to that various countries have different operating habits in practice, and trade parties in different countries will therefore subject to certain risks. Specific to China, research of our scholars for independent guarantee mostly focused on the legal level, research from trade practice perspective is relatively short, while China has made more use of independent guarantee in practice. It can be predicted, as China’s economic activities has further integrated into the international market, especially as the expansion of China’s international guarantee operations of banks and professional guarantee companies, independent guarantee will be used more and more extensively in practice. Therefore, the research of the application and the risk prevention has important significance.This article consists of three parts, as follows:The first Part is an independent guarantee bank’s fundamental problems. The summary describes the main part of the bank guarantee of the meaning of independence, legal attributes, and the direct and indirect security guarantees and the legal relationship between the parties is analyzed.The second part is independent bond banks in the legal risks faced by business. Including the applicant from the bond, guarantee beneficiaries, security aspects and terms of the guarantee against the risk. With related practices, specifically addressed the risk of bank guarantees as an independent who is mainly responsible for the legal risks faced by the types, causes and manifestations. Bank Guarantee for an independent legal risks facing the business, make prudent to do prior legal review, including the credit status of the parties, review the terms of the guarantee, etc., as well as the beneficiary of fraud claims, and strategies for effective risk control options recommended.The third part focusing on independent guarantees under Chinese law, the core of this article is to provide legal opinions for commercial banks to conduct the independent guarantee business in China, from both the legislative and the judicial perspectives.