An Empirical Study On Legal Issues Concerning Disputes Over Foreign Independent Guarantee Fraud

Independent guarantee and Standby letter of credit had been highly appreciated by main trade body of the world ones it appeared,for its characteristics of independence and irrevocable nature,guaranteeing the conduct of trade and the interests of both sides.For a long time,we lack related domestic laws,nor have we acceded to the United Nations Convention on Independent Guarantees and Stand-by Letters of Credit,which leads to the ambiguity of the application of foreign-related independent guarantee in our country.This series of problems weakens the competitiveness of Chinese enterprises,and is not conducive to the further implementation of 4"bring in”and“going out”.It is in this context that Provisions of the Supreme People's Court on Several Issues concerning the Trial of Independent Guarantee Dispute Cases(hereinafter referred to as“judicial interpretation of independent guarantee”/“judicial interpretation")came into being on December 1,2016,which concluded our vague position on the independent guarantee,clarified the constitutive requirements of the "fraud exception",and stipulates the application of law and the jurisdiction of foreign-related independent guarantee,thus will improve the ability to guard against financial risks of domestic applicant/independent guarantor and strengthen the competitiveness of domestic enterprises and banks in the international competition.However,there still exist some deficiencies related to the identification of independent guarantee fraud:(1)the lack of subjective elements of the composition of foreign independent guarantee fraud;(2)the lax standards of receipt fraud of foreign independent guarantee;(3)the useless of miscellaneous provisions of the composition of foreign independent guarantee fraud;(4)the lack of a series of legal provisions of foreign independent counter-guarantee disputes,including definition of the foreign independent counter-guarantee,the rules of jurisdictions and applicable law of foreign independent counter-guarantee disputes,the composition of foreign independent counter-guarantee fraud and so on;(5)the imprecise of application of the principle of autonomy in foreign independent guarantee disputes.These problems are all the key factors to promote the operation and development of independent guarantee.In order to promote the development of foreign-related independent guarantee,the article is based on empirical research,which makes inductive analysis and integration of identification,applicable law,jurisdiction issue and other issues in the cases of independent guarantee fraud,and learn from the system of abroad.I believe that the judicial interpretation advanced and superiority,but it also should be improved in the following several aspects:(1)accelerate the progress of legislation of foreign-related independent guarantee;(2)improve the standard of independent guarantee fraud;(3)add the applicable provision of disputes of counter-guarantee in entity;(4)restrict the application of autonomy principle.