The Study On The Application Of Independent Guarantee In China

Independent guarantee is the product of the development of civil and commercial activities,because of its unique characteristics,making the independent guarantee break through the traditional guarantee of the subordinate,make up the traditional guarantee in the guarantor of excessive defense,the efficiency of the program is low,the complexity of the program,Its emergence to promote the efficiency of civil and commercial activities,can be expected in the requirements of the era of information technology,independent guarantees will play a more important role in escorting the development of the economy.With the implementation of China's reform and opening up policy,foreign enterprises in China in the 1980s 80 years of investment and business transactions rising,in foreign enterprises and China's economic exchanges in the process,because China is in the early opening,the domestic credit level is low,originated in the West Of the independent guarantee system with the implementation of the reform and opening up policy has also entered China,and in China's foreign business in the first to carry out for China's reform and opening up the early economic development to provide some support.On November 18,2016,the Supreme People's Court promulgated the judicial interpretation of the provisions of the Supreme People's Court on Several Issues Concerning the Trial of Cases of Disputes over Independent Guarantees,which marked the formal recognition of the validity of independent guarantees in China in judicial practice.Independent guarantee has been developing in China for more than 30 years.With the continuous development of China's economy,its application in China is becoming more and more frequent.However,due to our legislation and the independent security related to the content and characteristics of the reasons for unclear reasons,the practice of problems and disputes frequently,resulting in this unique advantage of the tool failed to completely in China's economic development in the heat.Therefore,the study of the application of the independent guarantee system in our country is extremely important.This paper intends to introduce and analyze the main contents and characteristics of theindependent guarantee system,clarify the main problems in the application of the independent guarantee system in our country,and combine the provisions of the independent guarantee in the typical countries and international treaties and international conventions of the two legal systems.Research,based on our national conditions on the basis of improving the independent guarantee system in China to make recommendations.The main part of this paper consists of four chapters.The first chapter is the introduction of the basic theory of the independent guarantee system.This paper analyzes the inevitability and importance of the independent guarantee from the standpoint of the independent guarantee,defines the concept of the independent guarantee,and clarifies the concept of the independent guarantee in this paper,that is,the independent guarantee of this article contains the independent guarantee and the reserve Two forms of letter of credit.Then,the characteristics and manifestations of the independent guarantee are briefly introduced.The characteristics of the independent guarantee mainly include independence,document,abstract,unconditional and irrevocable.The manifestation is mainly independent guarantee and standby letter of credit.At the end of this chapter,we compare the independent guarantee and the traditional guarantee,and further indicate the advantages of the independent guarantee relative to the traditional guarantee,and reaffirm the importance of the independent guarantee in economic.The second chapter discusses the legislation of our country's independent guarantee system and the existing problems,focusing on the independent guarantee system in China from the existing problems.There is a lot of content in the independent guarantee system,and it is impossible to discuss all aspects in a paper.Therefore,the first section of this chapter explains and expounds the main contents of the independent guarantee system discussed in our country.Of the scope of the study,with a view to more in-depth focus on the main content.This paper argues that the most important content involved in the application of independent guarantee system in our country is the identification of three aspects:standard,legal relationship and fraud.In the second section of this chapter,the author discusses the current situation of legislation on independent guarantee system in China.This section solves the problem of the validity of the independent guarantee system from the legislation ofthe independent guarantee system,and then discusses the effectiveness of the independent guarantee system.The main contents of the independent guaranteesystem in our country are discussed in the three laws of our country.In the last section of this chapter,the author discusses the problems and the legal analysis of the independent guarantee system in our country,including the problem of the lack of standard,the unclear legal relationship and the incomplete type of fraud.In the legal analysis of these three problems,This paper argues that the cause of the problem is mainly due to the unclear understanding of the characteristics of independent guarantee independence,the misunderstanding of the nature of the independent guarantee and the inherent value of the independent guarantee fraud in the theory of invalid civil conduct.The third chapter is the comparative study of the application of the independent guarantee system outside the domain.This chapter is closely related to the three problems existing in the application of independent guarantee in our country.In the comparative study,we also focus on the three issues,from civil law countries,Anglo-American countries and international treaties and international practice To discuss.Through comparative analysis,found outside the domain of these three issues to understand or legal provisions are different.To sum up,outside the knowledge of independent guarantees are more or less from the independent guarantee on the traditional guarantee from the direction of the breakthrough direction,which for our independent guarantee that the standard provides a certain direction,that is,from the independent guarantee and the traditional guarantee In the characteristics and attributes of the different nature of the establishment of China's independent guarantee that the standard;In the independent legal relationship between the guarantor,the legal nature of the independent guarantee is particularly important,due to the national conditions and the background of the two major legal systems,outside the legal nature of the independent guarantee and to reach a unified point of view,On the issue of legal nature and legal relationship of independent guarantee,we should properly understand the legal nature and legal relationship of independent guarantee in China's independent guarantee in the light of the laws and theories of our country and the views of various countries on this issue;In the context of extraterritorial guarantees for fraudulent fraud,the rules on fraud and the rules of fraud in the application of independent guarantees are governed by the relevant rules,and in practice there are typical precedents that can be referred to,showing a typed trend,In our case,the relevant legislation in dealing with the case of independent secured fraud is not comprehensive,and the excellent experience of foreign countries should be drawn up on the issue of independent guarantee fraud,and the independentguarantee fraud exception is typified.The fourth chapter is to improve the independent guarantee system in our country to apply the proposal.The purpose of this chapter is to solve the three problems raised in this paper,that is,the independent guarantee of domestic application in the identification of standard issues,legal relations,fraud exceptions.The first section is to improve the standard of independent guarantee,first of all from the legal rationality of the independent guarantee independence characteristics,with the traditional guarantee in the "relative independence" to distinguish.Under this premise,the independence clause should be regarded as the standard of identification,the specific proof of the independence of the terms of the classification and manifestations,in order to better apply to specific standards.This section concludes with an explanation of the rules of interpretation in the practice of the terms of the property and the independence clause,and establishes the identification criteria for the complex situation that appears in practice.The second section is to solve the problem of independent guarantee legal relationship.Combining with the discussion of the previous chapters of this article,this paper argues that in resolving the legal relationship of independent guarantee,we should start with the legal nature of independent guarantee and combine with the legal analysis to clarify our independent guarantee Of the legal nature of the commercial guarantee,the independent guarantee of legal relations within the scope of commercial activities.Secondly,this paper argues that the traditional guarantee and commercial guarantee should be strictly differentiated,and the particularity of independent guarantee should be clarified so as to better clarify the legal relationship of independent guarantee.Finally,on how to deal with the legal relationship of independent guarantee,this paper argues that we should pay attention to the laws and principles of commercial activities and pay attention to the rules and principles of efficiency,fairness and appearance embodied in independent guarantee.Section III is the perfect exception to the provisions of an independent secured fraud.This section begins with the balance of the intrinsic value of the insured value(fair value and efficiency value),and we should weigh the intrinsic value in dealing with the issue of independent guarantee fraud exception,so as to better play the role of the independent guarantee system.In addition,it should be clear that the type of fraud exception,the establishment of substantive documents fraud as a fraud exception and the establishment of substantive fraud standards.Finally,it discusses the importance of perfecting the application of the guarantee under the independent guarantee,and putsforward some suggestions for the remedies in the case of independent guarantee fraud.