A Study Of The Cognizance Issues Of Fraud Under Independent Guarantees

Independent guarantee is widely recognized as a convenient and efficient way of guarantee in international trade by various countries and is widely used in commercial transactions.The independent nature of the independent guarantee ensures that the beneficiary's payment can be easily and quickly implemented.However,its independence also provides facilities for the beneficiary to provide fraudulent documents,abuse claims,or do other fraudulent activities.Therefore,the independence of independent guarantees has been recognized to the utmost in all countries.At the same time,fraud exception is recognized as the sole exception for payment in almost all countries.It is particularly important to study the criteria for the identification of fraud under independent guarantees.This paper firstly introduces the definition of fraud under independent guarantees.And the causes of the existence of fraud are the drawbacks of independent principle of independent guarantees and the external lack of uniform legal norms.The author describes the origin of the fraud exception and its theoretical basis,and then summarizes the meaning of the fraud exception principle,which lays a theoretical foundation for studying identification of fraud under independent guarantees.Secondly,with the increasing of trade and financial exchanges between China and other countries,the number of independent guarantee has increased rapidly.As a result,the number of fraudulent disputes arising from the independent guarantees has also increased.Therefore,in November 2016,the Supreme People's Court publicly promulgated the "Provisions of the Supreme People's Court on Issues Concerning the Trial of Independent Guarantees Dispute Cases".In this judicial explanation,Article 12 drew on extraterritorial provisions and jurisprudence and classify fraudulent types into three categories,which are lack of actual transactions,document fraud,and abusement of claims,which provides the court with a unified standard in judicial practice.However,after analyzing and judging the jurisprudence of the courts of our country after the judicial explanation was promulgated,the author found that the legal provisions lack rationality,leading to a variety of problems in court decisions.For example,the fraud standards of our country only refer to the international conventions and the rules in British and American at the superficial stage and the lack of principle prerequisites may lead to the ambiguity of fraud standards.The judicial interpretation is short of rationality in the provisions of document fraud,.For example,in this clause,the documents issued by the beneficiaries cannot be regulated,the degree of false declaration in the documents is not settled and the consideration of the beneficiary's intention is not included.These irrationalities result in the inconsistency of the scope of the documents issued by the court and the unclear criteria for discretion in document cheating.The setting of the miscellaneous provisions broke the strict standards stipulated in the judicial explanation,resulting in the abusement of this clause in practice.Finally,the author proposes a proposal for perfecting the recognition of fraud under independent guarantee.For example,the judicial explanation can introduce fraudulent standards for beneficiaries in the UK as a major premise of fraud,the subjective intention of the beneficiary can use the principle of intentional presumption;document fraud should include those issued by the beneficiary themself,and the degree of counterfeiting should be limited to a clearly false range.And the author also make a suggestion on ounter-guarantee fraud.