Research On Fraudulent Act Of Soft Clauses In Letter Of Credit

Now the overlapping of fraudulent act of soft clauses in Letter of Credit is rather serious in criminal and civil law, and mostly occur in the course of international trade. Because of no uniform international practice provisions regulating fraudulent act in Letter of Credit including fraudulent act of soft clauses, the nature of the convention itself is non-enforceable, and states’ different attitudes to fraudulent act in Letter of Credit, in dealing with disputes concerning credit soft terms, whether domestic or international commercial arbitration in the theory or the judiciary are in a more chaotic state.A general view of Chinese theorists in criminal law believe that, fallback provisions of Section 195 of Criminal law regulates the behavior mainly referring to fraudulent act of soft clauses in Letter of Credit. But whether in the theory or the judiciary, the character of fraudulent act of soft clauses in Letter of Credit remains highly controversial. Clarifying the definition and character of fraudulent act of soft clauses in Letter of Credit can solve the debate of its Crime and Non-crime, this crime and other crime. At the same time of improving the Letter of Credit fraud provisions of the criminal law set, there is important significance for both the trading interests of the individual and the whole credit system.The text is divided into three chapters except the introduction and conclusion:The first chapter describes the research background of soft clauses in Letter of Credit. This part mainly discusses the concept of the Letter of Credit system, and the definition and classifications of soft clauses in Letter of Credit, in order to understand the soft clauses in Letter of Credit fundamentally. With comparative analysis of the domestic and foreign legislation attitude to soft clauses in Letter of Credit, define the character of the soft clauses in Letter of Credit which still belongs to the meaning Autonomy between parties.The second chapter is about specific analysis of different opinions. Against disputes in the theory and practice of criminal law about the qualitative of fraudulent act of soft clauses in Letter of Credit, through the description and analysis of theorists’ opinions in criminal law about its crime and non-crime, this crime and other crimes, includes the criminal fraud theory of fraudulent act of soft clauses in Letter of Credit(criminal fraud or criminal credit fraud), the civil fraud theory(civil credit fraud or contract fraud or general civil fraud), the Non-illegal theory. Meanwhile, through the examples of the judicial practice of specific cases having rather different final judgment with similar act, a huge controversy existed in judicial practice is proved. Definite the basic ideas of this paper clearly in the dual basis of the theory and practice: fraudulent act of soft clauses in Letter of Credit should not be regarded as a criminal offense, even have no civil illegality, and the act of drawing up soft clauses cannot constitute a crime but only violates the ethical principles.The third chapter discusses the justifications for the basic point of this article. the justifications include: whether fraudulent act of soft clauses in Letter of Credit meets general view about the objective behavior mode of "fictitious facts, conceal the truth", whether the act has the equivalence and comparability with three other acts listed out in aspect of social harmfulness and analyze the reasonableness of identifying fraudulent act of soft clauses in Letter of Credit as criminal credit fraud or other crimes from the perspective of modestly restraining spirit of criminal code provisions, especially fallback provisions.