The Standard Of "Good Faith" In The Immunity Clause Of L/C Fraud

Article 10 of the provisions of the Supreme People's Court on Several Issues concerning the trial of L/C disputes stipulates the immunity of L/C fraud exception.The establishment of this system aims to maintain the safety and convenience of L/C transactions and protect the interests of bona fide third parties on the basis of promoting fairness.The "good faith" in this clause is the core of the immunity of L/C fraud exception,and also an important part of judicial determination.However,due to the lack of legislative provisions and judicial interpretation of L/C,there are still some problems and disputes in the judicial practice of "good faith",such as whether there is a unified judicial recognition logic for "good faith" ? Is there any objective basic fact that can be specified in the elements of "good faith" ? This paper combs the reasons of "good faith" judgment in the judicial cases of the immunity of L/C fraud exception,and discusses how to determine the two elements of "good faith" determination: "knowing" and "major loss" in combination with the results of interdisciplinary research such as civil law and criminal law.In addition to the introduction and conclusion,this paper includes the following six parts:Part ? is "the definition of the immunity of L/C fraud exception".This part introduces the definition of the Immunity of L/C fraud exception,which is based on Historical explanation.The main content of this system is that in some cases,even if there is L/C fraud,the court should not suspend bank payment.The system has been confirmed in the domestic laws of various countries,but the provisions are different.Article 10 of the judicial interpretation of China's L/C specifically stipulates that the applicable subject of the system is the intermediary bank that has made "good faith" payment,acceptance,negotiation and confirmation,such as the issuing bank,the negotiating bank and the confirming bank.Part ? is "the legislative basis of the" good faith "condition of the immunity of L/C fraud exception".This part explores the legal basis for the protection of "good faith" of banks from the perspective of legislative interpretation.Starting from the theory of civil and commercial law,it is found that this system aims to maintain the safety and convenience of L/C transaction,and to implement the concept of "fairness" of civil and commercial law on the basis of maintaining the balance of interests.At the same time,as the "bona fide holder" of the bill under the L/C transaction,the rights of the bank should also be protected.Part ? is "analysis of the connotation of the" good faith "condition of the immunity of L/C fraud exception".This part explores the origin and identification logic of "good faith" from the perspective of academic interpretation.Good faith is a subjective cognitive state different from good faith,which is protected by law."Good faith" means the lack of "ignorance" or "ignorance" of rights,which has different connotations in various systems.The specific connotation of "good faith" in the Immunity of L/C fraud exception refers to that the bank is convinced that it has the right to pay based on "the documents are consistent",and the specific elements of judging whether the bank is "good faith" include "knowledge" and "gross negligence" for fraud "not knowing" or "not knowing".Part ? is "the judicial cognizance of the standard of" good faith "in the immunity of L/C fraud exception".From the perspective of judicial practice,this part combs the judicial recognition of "good faith" by Chinese courts recently.It is found that the court found that "good faith" is relatively simple and lacks theoretical support from the beginning,"negotiation meets the requirements",and gradually unified to exclude the existence of "non good faith" by first judging whether there is "knowing" fraud,and then judging whether there is "gross negligence".The court's way of cognizance refers to the system of bona fide acquisition and the theory of bona fide bill holder,which is reasonable,legitimate and operable.Part ? is "knowledge judgment: one of the standards of" good faith "in the immunity of L/C fraud exception".This part combines the theory and relevant cognizance of "knowledge" in criminal law and civil law,and holds that under the immunity of L/C fraud exception,"knowledge" of banks needs to include the content of fraud(including document fraud and transaction fraud),and needs to be aware of the risk of the result of L/C fraud.Except for a few cases that can be directly identified as "knowledge" according to the bank's "joint fraud",it is difficult to directly identify "knowledge"."Knowledge" can be identified by "presumption".The basis of presumption is some objective basic facts,and the standard of presumption is subjective standard,which is to judge whether there is malice in combination with individual cases.Part ? is "Gross negligence judgment: the second standard of" good faith "in the immunity of L/C fraud exception".Based on the theory of "gross negligence" in civil law,this part holds that the "gross negligence" of banks under the exemption system of fraud exception of letter of credit is that they have not undertaken the reasonable duty of care.The source of the bank's "reasonable care obligation" is UCP600 "uniform customs and Practice for Documentary Credits" and the relevant financial regulations of domestic L/C.The bank's "reasonable duty of care" can be embodied in the process of issuing,negotiating,examining documents,notifying and paying letters of credit.