| In 2020,COVID-19 swept the globe and made an inestimable impact on the trade and transportation of all countries.In this context,the field of international trade has encountered many unprecedented problems.Independent guarantee is a commonly used document and financing tool in international trade business,which has also received a lot of attention.China has not yet established a complete independent guarantee system.In order to explore the deficiency of independent guarantee system in China,based on the case of Shanghai Shipyard Shipping Limited.v.Designwood International Investment（Group）Company Limited and OPUS TIGER1 PTE LTD.,this thesis sums up and analyzes the key elements of independent guarantee.Through the comparison of international conventions and trading model rules,as well as the domestic laws of representative countries in the design of independent guarantee system,this thesis selects the classic cases involving the independence dispute of independent guarantee in China’s judicial practice,and holds that China lacks the provisions on the legal status of independent guarantee at the legislative level,and the provisions on independent guarantee can be further improved.The first chapter reviews the case of Shanghai Shipyard Shipping Limited.v.Designwood International Investment（Group）Company Limited and OPUS TIGER 1PTE LTD.The case shows that whether the letter of guarantee is issued by a financial institution is not a key element of the letter of guarantee.It is important that the wording of the letter of guarantee clearly conveys the party’s intention to issue a guarantee.The second chapter conducts a comparative study on the key elements that constitute an independent letter of guarantee.By comparing the common law system and the civil law system,as well as the provisions of international conventions and transaction model rules on guarantee issuers,as well as relevant judicial precedents,it summarizes the current legislative status of independent guarantee issuers in extraterritorial law.The issuer of an independent guarantee must comply with the law.If the law does not restrict the issuer of the independent guarantee,the issuer is not a key element of the independent guarantee.The third chapter comparatively analyzes the relevant provisions of the independence clauses of the guarantee,supplemented by classic cases involving disputes about the independence clauses of the independent guarantee,clarifies that the independence clauses of the independent guarantee include documentary clauses and the description clauses of the guarantee obligation,and the clauses affecting the determination of the independent guarantee include Law applicable clauses and clauses restricting the right of defense.The fourth chapter discusses the legal effect of my country’s independent guarantee,the key elements and application of independent guarantee from my country’s relevant regulations on independent guarantee.After explaining the controversy arising from the judicial practice of the key elements of the independent guarantee,the chapter shows the different judgments of the independent guarantee issuer and the independent clauses of the independent guarantee in judicial practice.Chinese law stipulates four conditions for determining an independent letter of guarantee: 1.Whether the guarantor is a bank or a non-bank financial institution;2.Whether the guarantor’s payment responsibility is independent of the underlying transaction relationship and the legal relationship of the guarantee application;3.Whether guarantee contains the documents on which the payment is based;4.Whether the letter of guarantee contains the maximum amount,of which the last three items belong to the independence clause.In judicial practice,the important dispute that needs to be resolved is the scope of independent guarantee issuers,how to interpret the mixed description terms,and the identification of the nature of terms invoking the basic transaction.In the fifth chapter,this thesis puts forward some suggestions on the standard of independent guarantee in China.First of all,it is necessary to confirm the legal status of the independent guarantee at the legislative level,and formulate the law for the independent guarantee.Secondly,we should appropriately expand the scope of the issuers to issue independent guarantees,from financial institutions to companies operating guarantee business,and fully respect the autonomy of the parties.Finally,it is confirmed that when the guarantee meets Article 3 of the regulation on independent guarantee,the explanation in favor of the beneficiary shall be given priority.Meanwhile,the second paragraph of Article 3 of the provisions on independent guarantee is proposed to be amended as follows,it will not be supported that if the parties claim that the guarantee is general guarantee or joint guarantee only on the ground that the independent guarantee records the corresponding basic transaction. |
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