On The Perfection Of The System Of Independent Guarantee In China

In international trade, with the development of economy, trade scale expands gradually, the project investment is gradually increasing, the two parties involved in a transaction for possible transactions "shall not perform" risk considerations will also increase. In view of the huge risk, in the protection of the interests of creditors, the traditional way of security appears to be lagging behind. Generally in international trade by the bank to assume the role of the guarantor, and Banks are often reluctant to get sucked into the contract dispute between the seller and the buyer. In order to avoid risk, to better safeguard the rights and interests of creditors, reduce business contract dispute the trouble to the guarantor, independent guarantee the system in practice arises at the historic moment. Independent guarantee, in the international commercial trade practice used to call it "independent guarantee", "see line pay guarantee", because of this kind of guarantee is issued by bank, also known as the "demand bank guarantee". For the concept of independent guarantee both at home and abroad, has not been a unified definition, Under normal circumstances, the independent guarantee is to ensure that people should be the principal (main contract debtor) request, to the beneficiary (the creditor of the main contract) in the case of the beneficiary to the claims and produce a certain documents, ensure immediate pay unconditionally the liability for compensation of a written promise. "ICC guarantee" will be defined as the uniform rules:One party to the other party, according to the request in writing or prescribed documents request, to its commitment to pay a certain amount of compensation. The legal attribute of independent guarantee is the guarantee, Its purpose is to ensure the smooth realization of the main creditor’s rights, the basic characteristics of the guarantee in the form of a person’s guarantee, the credit and assets of the main body of the civil acts as a guarantee, however, the independent guarantee is a subversion of the traditional guarantee. Compared with the traditional guarantee, the independent guarantee has the following main features:first, the independence, the guarantor shall be formulated by the letter of guarantee is the obligation of payment of creditors, determined by does not depend on the basis of the effectiveness of the contract between the creditor and the debtor, as long as the creditor of submission of documents conform to the stipulations of the letter of guarantee, the guarantor must fulfill the payment obligation.Second, the documents, Independent guarantee amount, the payment term of payment and payment suspension, etc are all in the letter of guarantee shall be stipulated in clause itself, to ensure that the beneficiary is to determine whether the terms of payment of the guarantee is established, do not need to make judgments on the basis of the contract, the letter of credit.Third, the non-causative nature and irrevocable, "unconditional and irrevocable" such statements are generally in international bank guarantees and the relevant documents of the International Chamber of commerce also of the independent guarantee "unconditional and cannot be revoked, " the effectiveness of this feature in the affirmative.In the early 1980s in China, in accordance with international practice, start according to the request of the applicant, the independent guarantee for overseas beneficiary, at present, many commercial Banks in China are both in quantity and types has carried out relatively complete the standby letter of credit and guarantees transactions independently. At the same time, the relevant issues related to the independent guarantee can not be ignored. First of all, the effectiveness of the independent guarantee in our country is not clearly, so far, our guarantee legislation are not explicitly mentioned in the field of independent guarantees this concept, also did not form a standard effective legal documents, the lack of legislation in our country and has the right to explain, leading to the effectiveness of independent guarantee in our country is still controversial. Secondly, there is a blank in the legislation of independent guarantee, at present our country "guarantee law" does not have the relevant provisions about the independent guarantee system. However, these Provisions are not only content can not be consistent, but also the lack of binding. Third, the principle of justice is not uniform. In the judicial practice, for domestic companies, Banks and financial institutions between independent to keep negative attitude, Relevant decision, however, acknowledged the international economic exchanges in Chinese civil and commercial agents of foreign companies or enterprises with the effectiveness of the independent guarantee, at the same time for foreign Banks, financial and insurance institutions for the effectiveness of the main body independent guarantee confirmed on domestic civil and commercial matters, recognition in the field of international trade in the autonomy of independent guarantee.Aimed at the problems existing in the independent guarantee in the judicial practice in our country, The author thinks that, although our country is not clear in the legislation and judicial interpretation of independent guarantee the effectiveness of the "security law" proviso of article 5 of the content has reserved a certain guarantee for independence legislative space, can through the following ways to perfect the system of independent guarantee in our country. First of all, in the legislation form, can let be engaged in the practice of independent guarantee business sector, mainly banking, to a unified industry standard led system, then the "security law" and its judicial interpretation of the industry standard shall be identified, clarify the legal status of independent guarantee system, standardize the system of independent guarantee. Secondly, in the legislative content, to be clear about the definition, nature, behavior subject and legal relationship, and set up the principle of fraud exception to avoid the possible fraud and abuse of power.