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Research On The Determination Of Fraud In The Dispute Of Stop Payment Of Independent Guarantee

Posted on:2021-03-12Degree:MasterType:Thesis
Country:ChinaCandidate:M H ZhangFull Text:PDF
GTID:2416330647953806Subject:Law
Abstract/Summary:PDF Full Text Request
Independent guarantee is a widely used tool in international commercial transactions.Its independence breaks through the limitation of the traditional dependent guarantee,and makes the commercial efficiency improve significantly.The independence of the independent guarantee is reflected in the fact that the legal relationship of the independent guarantee is completely independent of the legal relationship of the underlying transaction,regardless of whether the underlying transaction is in default or not.In this case,the fraud cost of the independent guarantee is very low,so the fraud of the independent guarantee occurs frequently.Therefore,in order to deal with the case of the independent guarantee fraud,the stop of the independent guarantee comes into being,and the most important part is the fraud identification of the independent guarantee.The difficulty in regulating the determination of fraud in independent guarantee lies in that on the one hand there is no uniform regulation in the world,and on the other hand,the determination of fraud in independent guarantee requires the consideration of both commercial efficiency and honest credit,therefore,it is worth discussing how to establish the standard of fraud identification on the basis of balancing the two values as far as possible and how to embody the principle of good faith in the corresponding standard.The author refers to the relatively mature independent guarantee fraud identification system outside the country,this paper divides the fraud identification criteria of the independent guarantee abroad into two categories: The fraudidentification criteria based on the examination of the subjective elements and the fraud identification criteria based on the examination of the objective elements,at the same time,the function and nature of each country's independent guarantee are compared with our country's independent guarantee.Finally,on the basis of the existing judicial interpretation of the independent guarantee,the author supplements and revises the corresponding clause.In the case of the first four paragraphs,as long as the objective facts satisfy the four situations,no matter what the subjective state of mind of the beneficiary,in the bottom-up clause of paragraph 5,the author prefers to amend "the beneficiary knows that he has no claim for payment" to "the beneficiary knows or ought to know that his claim will harm the legitimate interests of other parties",and introduce "the principle of balance of interests" into the bottom-up clause.In addition,due to the fact that the courts have different understandings of the limits of the examination of basic transactions and the distribution of the burden of proof is unclear in our judicial practice,the author,in addition to stipulating the standards for the determination of fraud in the independent guarantee in theory,it also attempts to provide implementable recommendations in practice.At this point,the author mainly adopts the conclusion by comparing the distribution of the burden of proof and the subjective elements of the general tort.Although the independence of the independent guarantee has a strong promotion to the commercial efficiency,it is also an indispensable tool for the development of the "Belt and Road" policy and the encouragement of opening-up in China,but in maintaining the efficiency of commercial instruments,the protection of good faith,fairness and justice is also indispensable,therefore,it is of great significance for the bureau to revise the fraud identification standard of independent guarantee and put forward a guiding and enforceable practice direction.
Keywords/Search Tags:Demand Guarantee, Fraud, Identification of Fault
PDF Full Text Request
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