On The Application Of Independent Guarantee In Our Country

Independent Guarantee,originated from commercial practice,is a new type of guarantee,which has the traditional guarantee function and unique independent characteristics,and can more effectively protect the rights and interests of creditors.Independent guarantee has been widely used in the fields of international finance,trade and financing.In the 1980 s,Chinese banks began to apply the independent guarantee system to solve the problem of external guarantee,but our country lacks the independent guarantee legal norm for a long time.Due to the unclear legislation,there are a lot of disputes in the application of independent guarantee in China.As an exploration of the application of the independent guarantee legal system in China,on November 18,2016,the Supreme People's Court promulgated the provisions of the Supreme People's Court on issues concerning the hearing of cases involving independent guarantees.The rest of this article is referred to as the provisions of the independent guarantees of the Supreme Court.The enactment of this regulation indicates that the validity of independent guarantee has been officially recognized in the judicial practice in China.The promulgation of the Independent Guarantee Regulation of the Supreme Court has laid a foundation for the independent guarantee system in China,but there are some problems in the specific judicial application,which are mainly reflected in the judicial cognizance of the in dependent guarantee and the cognizance of the fraud of the independent guarantee.This paper is devoted to analyze the problems and causes of judicial determination of independent guarantee and fraud determination of independent guarantee,and then put forward relevant suggestions for improvement.In the first chapter,firstly,it introduces the historical origin of independent guarantee from commercial practice;secondly,it combs the disputes on terms and concepts of independent guarantee,summarizes the essence of independent guarantee,classifies independent guarantee,and clarifies the relationship between independent guarantee and independent guarantee;finally,it introduces the relevant legal provisions of independent guarantee,and clarifies the legal status of independent guarantee.In the second chapter,firstly,the problem of judicial determination of independent guarantee is summarized from the typical cases of independent guarantee in China,secondly,it sums up the problem of the determination of the fraud of independent guarantee from the cases,and it is found that the scope of the is suing body of the documents is not consistent,the measurement standard of document fraud is not clear,and the bottom-covering clause is abused.In the third chapter,firstly,the causes of the judicial determination of independent guarantee are analyzed,including three aspects: First,the judicial interpretation limits the scope of the subject of independent guarantee;Third,the judicial interpretation does not stipulate the clause conflict settlement rule.Secondly,the author analyzes the causes of the independent guarantee fraud from four aspects:First,the document fraud only limits the third party but not the beneficiary;second,the document content does not specify the degree of fraud;Third,the document fraud does not take the intention as the essential condition;fourth,the bottom-covering clause abuse.At last,the article analyzes and compares the above-mentioned provisions of the extra territorial law,and provides some reference for the solution of the problem.In the fourth chapter,first of all,I suggest that our country expand the scope of the independent guarantee subject gradually under the situation of rapid economic development,and clarify its necessity,rationality and feasibility;Then,it is suggested that the identification criteria of independence of independent guarantee should be clarified,and the identification rules of both in dependence clause and subordination clause in guarantee contract should be clarified,clearly define the identification criteria of common forms of fraud such as material fraud,invalid documents,material fraud,the Independent Guarantee System should not lose its unique effectiveness or breed too many problems of fraud when the definition of fraud is not accurate.