The Identification Rule Of Demand Guarantee

In recent years,with the continuous deepening of the national “Belt and Road” construction and the company's “going global” strategy,the application of demand guarantee has been widely applied in commercial practice both at home and abroad.In order to better regulate trade and financial market,and strengthen the protection of creditor's rights,the Provisions of the Supreme Prople's Court on Several Issues Relating to Trial of Demand Guarantee Dispute Cases(hereinafter referred to as the Judicial Interpretation of Demand Guarantee)implemented in December2016 formally recognized the validity of demand guarantee in domestic commercial transactions,which is of milestone significance.However,as the number of cases involving demand guarantees continues to increase in judicial practice,how to correctly divide the boundary between demand guarantees and accessory guarantees,and how to reasonably identify the legal nature of guarantees,has become a critical issue that needs to be resolved in the field of judicial practice.Based on this,this article intends to study and analysis from both theoretical and practical aspects,drawing on the useful experience of foreign law,in order to provide reference ideas for improving the identification rule of demand guarantees in China.In the first chapter,the author mainly explaines the basic theoretical issues of the demand guarantee system.First of all,it traces the reasons of the generation and development of demand guarantee,and clarifies the concept category and manifestation of demand guarantee.In terms of classification,demand guarantee is one of the typical narrow independentguarantee.Compared with the independent guarantee contract,there are obvious differences in terms of legal nature,degree of independence,and applicable rules.Secondly,it reveals the basic characteristics of demand guarantee,namely independence and documentary.In the relationship between this two,on the one hand,the principle of independence is the basis of the documentary payment mechanism;on the other hand,the purpose of the documentary transaction is to ensure the ture realization of independence.At the end of the first chapter,the legal nature of demand guarantee is analyzed.The author believes that,because demand guarantee originated from commercial practice,and its system design embodies the principle of commercial efficiency and commercial appearance,which is a typical commercial guarantee.In the second chapter,the author sorts out the historical process of the identification rule of demand guarantee in China.First,it reviews the controversy about the scope of application of demand guarantee in the judicial practice before the implementation of the Judicial Interpretation of Demand Guarantee.The mainstream view is that demand guarantee is only applicable to international commercial transactions.If the basic transaction relationship is not foreign-related,there is no room for the application of demand guarantee,and the judiciary tends to deny its independent validity.Afterwards,by analyzing the definition and the identification factors of demand guarantee in the Judicial Interpretation of Demand Guarantee,this paper summarizes the identification rule established by the judicial interpretation.Specifically,demand guarantee must be issued by a bank or a non-bank financial institution,in written form,stating the documents and the maximum amount for payment,and the content of the guarantee text can reflect the intention of the issuer to assume the independent guarantee responsibility.In the third chapter,the author takes the typical cases after the implementation of the Judicial Interpretation of Demand Guarantee as the research object,explains the identification of demand guarantee in judicial practice from different angles,and summarizes the difficulties of judicial recognition on this basis.However,the description of guarantee liability in the real transactions may be vague or even confusing,which makes itdifficult for the court to correctly distinguish between demand guarantees and accessory guarantees.Especially when the guarantee contains both independence clauses and accessory clauses,or the payment terms invoke the basic transaction,how to determine the legal nature of the guarantee,there are disputes and differences in the practical field.In addition,how to deal with the guarantees with the nature of the demand guarantee only issued by entities other than banks and other financial institutions? There is no provision in the Judicial Interpretation of Demand Guarantee,which resulting in uncertainties in the courts' trial of relevant cases.In the fourth chapter,aiming at the problems mentioned in the third chapter,the author focuses on the improvement of the identification rule of demand guarantee in China.Based on the analysis and reference of the beneficial experience in foreign law,the author puts forward his own suggestions,from the identification ideas,the scope of the issuer,the basic elements and the content interpretation of the guarantee text.First of all,we should adhere to the concept of “valuing the substance and neglecting the form”,take the substance content of the guarantee rather than the individual wording as the main basis for identification.Second,the issuing entities should not be regarded as the decisive element for demand guarantee identification,and the demand guarantee which issued by other commercial entities other than banks and other financial institutions should not be denied its independence effect directly.Third,the complying documents on which payment is based and the maximum amount are the basic elements of the demand guarantee,which are indispensable in the recognition.Finally,in the interpretation of the content of the guarantee text,we should respect the party's autonomy of will as the principle,take the independence clause of guarantee responsibility performance as the core element to identify the demand guarantee,and compare the positive factors and negative factors the affect the identification of independence in the guarantee clause,so as to explore the true meaning expression of the guarantor to the maximum extent.