The Improvement In Law Of The Independent Guarantee Of The Commercial Bank

It has been shocking that the independent letter of guarantee of the commercial bank has been developing rapidly, which can be accounted for not only the trading range has never been involved in such a wide range of increasingly huge amount of the transaction, but also the commercial banks on the basis of independent guaranteed products continue to create a new type of independent guaranteed derivative products, making the bank guaranteed business present at a booming stance among the international and domestic business. However, everything is just superficial with the essence that the creditor in the commercial activities claims for higher level of independence and security, which has resulted in increasingly demanding financial guarantee services for the commercial banks who serve as the guarantor.China’s commercial banks comply with this trend by applying and expanding the independent guarantee business in the international and domestic commercial activities, but in terms of the our independent guaranteed law, either legislation of the law or the judicial practice are far off the judicial circle, which is neither in line with the development trend of independent guarantee nor conform to the initiative of seeking interests in the judicial circle. In view of this, in this paper, the reasons and the impact referring to the above issue have been concluded by standing at the point of the legislative status quo, comparing and analyzing the independent guaranteed systems in the Euro countries and America and international conventions, and finally finding out the problems that held the judicial judges and business systems back. In the end, some proposals are set forth in the paper to improve the legislation of the related law in the independent bank guaranteed business.In the first chapter, the independent commercial bank guaranteed is defined, giving a brief introduction of the client and the legal relationship of the independent letter of guarantee of the commercial bank as well as of the common type especially the new applications at large; the status quo in terms of independent commercial bank guarantees business is divided into three parts, including the status of business development, the judicial status of absent current legislation related professional system and as well as of the different treatment at home and abroad.In the second chapter, the main problems including three aspects that occur in the guarantee business of the commercial banks are analyzed. Firstly, the legislative principle is fragmented from the judicial practice in reality; secondly, the right for injunction is abused by the people’s court; lacking professional guidance in the independent guarantee business resulting in some operational problems, which can be divided into two parts: one is for the validity while the other is the issue of transfer.In the third chapter, the independent guarantee legal system and relevant international conventions in European and American countries are stated clearly, by introducing and analyzing the legal system and judicial practice cases as well as the international practice, some experience and proposals are explicitly illustrated.In the fourth chapter, from the point of legislation, the commercial bank itself and international standards, the advice for improvement in the independent guarantee of the commercial bank have been proposed.At the end of this paper, the author conducted a general summary of the full paper, putting forward relevant advice for improvement concerning the law of independent guarantee. It is convinced by the author that with the development of global economic integration and with the importance of independent guarantee business and the urgency of preventing potential risks, doubtless China necessarily catch the trend to completely accept the independent guarantee business and declare its legal status, the legal effect and availability.