| In the context of the concept of “Belt and Road”,the total trade volume between China and countries along the route has increased significantly.In order to cope with the financial pressure brought by the growth of international trade,enterprises can support their own development through bank credit and financing business.The warehouse receipt is a kind of document in international trade.Each bank also continuously carries out the warehouse receipt pledge business to help the enterprise finance.It can be inferred that the legal disputes related to the warehouse receipts in the process are also emerging endlessly.Among all the problems,non-standard warehouse receipts would be most problematic.Among them,the Qingdao Port financing fraud case in 2014 was that borrowers used non-standard warehouse receipts for repeated pledges to defraud bank loans.The case has a wide impact,and a large number of banks were involved.The case can be used as representatives.Therefore,this article is inspired by the background of the case and international trade.At the same time,there are not many scholars who have compiled and discussed special academic papers on non-standard warehouse receipts.Therefore,this paper will study the issue of non-standard warehouse receipts and pledges in international trade.This article discusses the behavioral patterns,legal consequences and remedies,causes,and recommendations for improvement of such behavior.The first chapter of this paper begins with the definition of non-standard warehouse receipts,introduces the differences and linkages between non-standard warehouse receipts and standard warehouse receipts,the legal nature of non-standard warehouse receipts,and their comparison with bills of lading,warehouse receipts,and other safekeeping supporting documents and the bill of lading.This paper considers that a non-standard warehouse receipt is a warehouse receipt other than the definition of a standard warehouse receipt.It is not issued through the electronic system of the commodity exchange and is not managed by the commodity exchange,and it has no uniform format.It represents the right certificate of the warehouse,the goods in which can be extracted.At the same time,this chapter also uses the information collected by the author about the Qingdao Port fraud case,and takes the Qingdao Port case as an example to introduce the behavioral pattern of non-standard warehouse receipts.In the case of Qingdao,the parties used this kind of non-standard warehouse receipts for repeated pledge,applied for opening a letter of credit,cashed in the offshore market,and earned the difference in the middle to achieve the purpose of profit.The case is still being processed.According to the criminal ruling of the Qingdao Intermediate People's Court of Shandong Province,in April 2017,the criminal part of the case was withdrawn by the procuratorate.At present,in the civil part of the case,according to the information that can be found at present,the author obtained the information regarding the prosecution and judgment of the Qingdao Branch of the China Construction Bank,which was decided by the Qingdao Intermediate People's Court.The second chapter is the focus of this article.In this chapter,the author discusses the legal consequences of repeated pledge of non-standard warehouse receipts,namely,the perspective of criminal responsibility and civil liability.From a criminal point of view,the repeated pledge of non-standard warehouse receipts may expose the parties to the allegation of “Loan Fraud”.Since the borrower uses the reissued warehouse receipt as a means to apply for a loan from the bank,it complies with the provisions of the “Loan Fraud” under Criminal Law.At the same time,the author also believes that warehousing companies and borrowers do not constitute a unit crime,because Criminal Law does not hold the unit "loan fraud" responsibility,but it is possible to investigate the responsibility of the main management personnel of the two companies.At the same time,according to the prosecution's charges of prosecution,the prosecution's initial charges were multiple crimes including “Contract Fraud”,“Loan Fraud” and “Letter of Credit Fraud”.However,according to the analysis,the author believes that the repeated pledge fraud of nonstandard warehouse receipts does not comply with the provisions of “Contract Fraud”,and “Letter of Credit Fraud”.Therefore,it is very likely that the court will not be convicted and sentenced on the two counts.From the perspective of civil liability,the lending bank may require the borrower and the warehousing enterprise to assume responsibility for liability on the grounds of breach of contract or fraud,but may not be able to claim tort liability for the infringement.In terms of liability for breach of contract,although the repeated pledge makes the “pledgee” bank have no pledge right,the “pledgee” and the trade party have signed a pledge contract and a loan contract,after which the “pledgee” can pursue the trade party according to the pledge contract.Warehousing companies and banks generally have a warehouse supervision agreement,so in the case of non-standard warehouse receipts repeated pledges,banks can also require storage companies to bear the liability for breach of contract.In the case of fraud,the bank can request the court to cancel the contract and return to the original status based on the general civil fraud.In the case of opening a letter of credit,the bank may also seek a court letter of credit termination order based on the fraudulent fact of repeated pledge.However,if the bank itself is at fault on the review document,then the bank is likely to lose the right to relief under fraud.However,because the bank that has been infringed on the interests of itself has not obtained the “pledge right”,there is no violation of the civil rights under Tort Law.Therefore,the author believes that the warehousing enterprise and the borrower cannot be held tort liability for infringement.According to the current judgment in the Qingdao Port case,the bank is titled to compensation from the borrower for breach of contract.Therefore,the author believes that in subsequent cases,the bank is more likely to choose default as a requirement for the warehousing enterprise and the borrower to take responsibility reason.The third chapter sorts out the provisions of the current law on non-standard warehouse receipts,and at the same time combines the defects in the operation process,discusses the legal regulation of the existing non-standard warehouse receipts and the unreasonable aspects in the practical operation.The author believes that the reasons for the occurrence of non-standard warehouse receipts include the lack of systematic and detailed provisions of the regulations.When the law stipulates the pledge of the warehouse receipt,it does not specify the content that should be recorded,and the registration and publicity of the non-standard warehouse receipt.These shortcomings have led to the emergence of nonstandard warehouse receipts and pledge problems to some extent.At the same time,due to loopholes in the law,there may be a lack of relative guidance in practice,and negligence and deliberate behavior in practice are also the cause of the problem.The “surface review” principle of the bank led to its lack of acknowledge of the actual pledge.At the same time,the information exchange between the bank and the warehousing enterprise is not normal,and the bank's repeated pledge of the pledge is also easy to be in the information blind zone.In addition,under the influence of market factors,the confusion of the warehousing industry itself and the confusion in the management of warehousing enterprises are also one of the reasons for the repeated pledge of nonstandard warehouse receipts.The warehousing administrator's management of the issuance of warehouse receipts is also a factor.In the last chapter,the author provides some suggestions for the solution of the problem of repeated pledge of non-standard warehouse receipts,including stipulating the rights and obligations of non-standard warehouses as pledge parties,unifying the format of nonstandard warehouse receipts,and improving industry access standards.First of all,in view of the lack of legislation,it is possible to add detailed provisions from the legislation,to clarify the nature and content of non-standard warehouse receipts,as well as the legal liability of the pledgor and the procedural status of the pledgee of the warehousing enterprise.Promote the electronization of warehouse receipts,and at the same time,establish a registration publicity system for non-standard warehouse receipts.Requiring bank review documents is no longer limited to “surface conformity”,but using public information to review the authenticity of non-standard warehouse receipts and the existence of repeated pledges to prevent the huge cost of subsequent losses.By the way,the newly enacted China Electronic Commerce Law is in no relation to electronization.The adoption of legislation or the establishment of industry regulations can also help solve this problem to unify the non-standard warehouse receipt format,determine the opening and management process of non-standard warehouse receipts,improve the management level of non-standard warehouse receipts and storage enterprises,etc.Finally,because the problem of repeated pledge of non-standard warehouse receipts is not only reflected in the case of Qingdao Port Case,the author believes that China should combine the actual situation of international trade,legislation and industry norms to accelerate the follow-up of the actual operation of this phenomenon.Better solve this problem in the future. |
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