Research On The Security Purpose Of The Independent Guarantee

The understanding of accessoriness,which evolved from the Roman law period,needs to be based on the respect for the purposes of the involved parties,and accessoriness is not an unchanging legal principle,but one that can be flexibly adjusted to the needs of the parties and the realities of the transaction.For commercial purposes,independent guarantees,which are non-accessory guarantees.Both have likewise evolved as a result of the different needs and purposes of the parties.An independent guarantee is not an abstract,but a causative contract because it also has a security purpose.The understanding of the security purpose goes to the heart of the system of independent guarantees.The identification of independent guarantees requires an examination of the parties’ willingness to make the security obligation independent of the obligation in the underlying relationship with respect to the fulfilment of its security purpose.There are many criteria and references,but they vary in importance.Direct denial of independence through a single qualitative criterion should be minimized and should avoid being limited by a single type,while multiple reference factors should be brought into perspective and a pluralistic view of the security contract as it existed in reality should be taken,thus fully respecting the wishes of the parties.There may be a tension between the realization of the security purpose and the efficiency of the independent guarantee,which needs to be adjusted through the defence of abuse of rights.The defence of abuse of rights arises when the party requests payment knowing that the security event has not occurred.In addition to the abuse of rights defense,there are other types of defenses.There are different ways of liquidating the return corresponding to the different circumstances in which the improper payment occurred.The concept of the security event is not sufficiently recognized in Chinese law and the relevant rules need to be further clarified and harmonized with other existing rules.