On The Construction Of Independent Guarantee System In China

Independent guarantee originated in international trade transactions,and its convenient and efficient characteristics are widely used.The core of independent guarantee is that the effectiveness of the principal creditor’s rights and obligations contract does not affect the effectiveness of independent guarantee,which is totally inconsistent with the traditional subordinated guarantee.At present,some countries outside the region have recognized the effectiveness of independent guarantee in domestic civil and commercial transactions.At present,the establishment and improvement of the independent guarantee system in China has theoretical guidance and practical significance.Of course,in view of the severity of the independent guarantee,subversion of the traditional guarantee system,in our country to improve the independent guarantee system should take multiple measures to balance the legal interests,make the system really play its role,promote the development of the economy and society.Therefore,this paper is divided into five parts to discuss the improvement of China’s independent guarantee system.The first part analyzes the legal definition of independent guarantee system.This paper mainly studies the connotation,characteristics,denotation and relative concepts of independent guarantee.The autonomy of the parties is the basis of the independent guarantee system.In 2016,France first confirmed the independent guarantee in its legislation.The connotation of the independent guarantee is that the guarantor voluntarily waives any right of defense arising from the master contract and guarantees the performance of the debt by the creditor.The scope of independent guarantee can be divided into broad independent guarantee and narrow independent guarantee.Independent guarantee is independent,documentary and irrevocable.The second part examines the legislative and judicial status quo of independent guarantee in China and finds out the existing problems.As far as the independent guarantee legislation is concerned,there are some provisions on the independent guarantee in international transactions,but the domestic independent guarantee regulation is still a blank stage.The Jiumin Summary and the Civil Code of the People’s Republic of China(hereinafter referred to as the Civil Code),which will take effect on January 1,2021,also show a strict adherence to the subordination of guarantees.As far as judicial practice of independent guarantee is concerned,most courts do not recognize the validity of independent guarantee in domestic transactions due to the existence of proviso clause in paragraph 1 of Article 5 of security Law,but some precedents implicitly acknowledge its validity.The third part investigates the legislation of independent guarantee of foreign countries and its enlightenment to China.The countries with relatively mature independent guarantee legislation are France and Germany,among which France juxtaposed independent guarantee and guarantee in statutory form,while Germany allowed independent guarantee to be applied in domestic transactions.In the common law system,the independent guarantee and standby letter of credit are confirmed in the form of cases,among which the United Kingdom and the United States are more prominent.These countries make full use of the advantages of independent guarantee and promote the rapid development of economy through the application in domestic transactions.The study on the legislation and application of independent guarantee in the above-mentioned countries reflects the concept of respecting the parties’ will autonomy and the state’s proper guidance,which is worth learning from.The fourth part discusses the necessity of applying independent guarantee in China and the removal of theoretical obstacles.On the one hand,China keeps up with the trend of the times,the economic globalization is further increased,and independent guarantee is necessary;on the other hand,the theoretical obstacles of independent guarantee in China can be removed.At present,China does not recognize the validity of independent guarantee in domestic transactions,except for the guarantee issued by banks and non bank financial institutions.To improve the independent guarantee system,develop the domestic economy and enhance the international competitiveness of our country,we need to reflect on the legal theory of the independent guarantee system of our country.Therefore,we need to affirm the effectiveness of the independent guarantee.The fifth part discusses the rules design of the independent guarantee system in the civil code.Firstly,it is necessary to clarify the application subject and scope of independent guarantee,and to set up independent guarantee in written form to strictly review the authenticity of the form and content;secondly,for the fraud dispute of independent guarantee,it is necessary to establish relevant systems to strengthen the protection of guarantors.Through sorting out the types of independent guarantee fraud disputes,making clear the application of independent guarantor’s right of defense and relevant judicial relief ways,and building a comprehensive protection mechanism;thirdly,strengthening the protection of the bona fide third party in the transaction,reducing the transaction risk through the exception of independent guarantee fraud,improving the independent guarantee system in China,and making it a social and economic development Booster.