Research On The Legal Problems Related To Independent Letter Of Guarantee In Shipbuilding Contract Of China

As a new way of guarantee,independent letter of guarantee is endowed with the properties as independence,document and irrevocability.Based on the above properties,independent letter of guarantee is able to balance the risks faced by both parties in trading,ensure the rights and interests of them to the greatest extent,in this regard,it is widely used in international trading,finance,shipbuilding and so on.Along with the promotion of “the Belt and Road Initiative” and development of transnational commerce,independent letter of guarantee has also been recognized in the legislation and practice of China,moreover,it is widely used in shipbuilding field.In such a background,the paper analyzes the shortcomings and problems existing in independent letter of guarantee for shipbuilding contract of China from the aspects of legislation and practice by combining with the current status and taking the definition,nature,cognizance,legal relationship of independent letter of guarantee as the starting point.In accordance with such shortcomings and problems,it proposes that the relevant independent letter of guarantee system should be established in China,the applicability of international conventions and practices should be adjusted,the enterprises in China should be guided in terms of fraud relief and prevention in independent letter of guarantee,the stop payment system for letter of guarantee should be improved by combining with the experience abroad.Firstly,the paper carries out research on the relevant theories of independent letter of guarantee in shipbuilding contract,then it starts from the concept and nature of independent letter of guarantee to gradually delve into cognizance,types,analysis of practical value and so on for independent letter of guarantee in shipbuilding contract.Secondly,it analyzes the legislative status of independent letter of guarantee and points out the shortcomings which are respectively the legal status of independent letter of guarantee system is not recognized in the aspect of legislation,there is limitation for the judicial interpretation of independent letter of guarantee,the draft of “Civil Code” is not included in the clauses of independent letter of guarantee and so on.Thirdly,it studies the problems generated in the practice of independent letter of guarantee in shipbuildingcontract of China which include that the Chinese court cannot refer to the applicable international practices and conventions,the letter of guarantee fraud is easily generated,there is dilemma for the stop payment system of independent letter of guarantee and so on.Next,it carries out study on the independent letter of guarantee system abroad and the fraud standards of independent letter of guarantee so as to analyze the experience abroad worthy of being regarded as reference.At last,it proposes to establish the independent letter of guarantee system in China,adjust application of international conventions and practices,guide the Chinese enterprises in terms of fraud relief and prevention in independent letter of guarantee,improve the stop payment system of independent letter of guarantee based on the experience abroad,which provides reference for the improvement of independent letter of guarantee in shipbuilding contract of China.