| With the integration of China’s economy and the world economy,especially the "Belt and Road" initiative,Chinese enterprises are becoming increasingly active in international trade.An independent letter of guarantee is issued in writing to the beneficiary by a bank or non-bank financial institution as the issuer,agreeing to pay the beneficiary a specified amount or within the maximum amount of the guarantee when the beneficiary requests payment and submits documents that meet the requirements of the guarantee Promise of.It is an important feature of an independent letter of guarantee that it is independent of the basic legal relationship and only needs to provide the necessary documents in accordance with relevant requirements to accept.The independent letter of guarantee not only plays a role in a simple and efficient international payment procedure,but also,to a certain extent,is a test of the subjective.The independent letter of guarantee not only plays a role in a simple and efficient international payment procedure,but also,to a certain extent,is a test of the subjective integrity of the beneficiary in submitting a document claim.Because the cost of independent guarantee fraud is extremely low,it has resulted in an increase in fraud disputes and frequent fraud claims lawsuits.On November 18,2016,the Supreme People’s Court issued the "Regulations on Several Issues concerning the Trial of Independent Guarantee Dispute Cases",which came into force on December 1,2016.To a certain extent,this provision provides a basis for the trial of independent guarantee fraud cases and the parties’ implementation of related acts,but in view of the complexity of international trade practice and the generality of legal rules,there will still be some problems.This paper selects the letter of guarantee fraud cases such as Foreign Economic Group Corporation v.Oriental Real Estate Co.Ltd.as the research object,in order to review the trial process and sort out the relevant theoretical knowledge.This paper consists of four parts.The first part is the introduction of the case.Based on a brief introduction to the facts of the case and the outcome of the trial,three key issues of contention are summarized: 1.The jurisdiction and application of the law in this case;2.Whether the Oriental Real Estate Company constitutes an independent letter of guarantee fraud;3.Whether the Bank of Costa Rica needs to stop Pay the guarantee amount.The second part is the jurisdiction of this case and the application of law.There is a dispute resolution clause when the foreign economic group company and Dong Fang Real Estate Co.,Ltd.entered into a contract,and the parties agreed that any disputes should be submitted to the Costa Rica arbitration institution for arbitration.So does the Chinese court have jurisdiction over this case? How to deal with the application of law of uniform substantive norms（international treaties and international practices）and conflicting norms,if there is jurisdiction.The third part is the constituent elements and types of independent guarantee fraud.On the basis of theoretical analysis,it is analyzed that the behavior of Oriental Real Estate Company,which still requires the bank to pay when the Costa Rican arbitration institution determines that it is in breach of contract,does not constitute a letter of guarantee fraud.The fourth part is the legal basis and type of the stop payment of the independent letter of guarantee.The stop payment of an independent letter of guarantee needs to meet two situations where the beneficiary’s fraud is highly likely or beyond reasonable doubt,including the stop payment by the bank and the type of stop payment by the beneficiary.The Bank of Costa Rica requires a stop payment guarantee. |
