A Study On Some Aspects Of Independent Guarantees

As a new type of credit guarantee, the independent guarantee has been developing and maturing in the vigorous development of international economic trade practice in the 1960's, and has been gradually widely applied to the international finance, the international trade and the international financing domain. The independent guarantee system breaks through the subordinate characteristic which in the theory of traditional civil law, and manifests the brand-new characteristic in many aspects: it is independent and not dependent on the influence of any underlying transaction's change or invalidity; guarantor's responsibility is not decided to the underlying transaction fulfillment or not, but to the creditor proposed document and the documentary evidence which are conformed to the guarantee contract or not. At present, in the international guarantee practice, the independent guarantee system's widespread application already becomes a kind of irresistible tidal current. The international conventions and the treaties of independent guarantee also are tending to mature and perfect gradually.But now, our country's laws and regulations do not have the explicit stipulation regarding the independent guarantee. Although Article 5 of Guarantee Law of PRC legitimatizes the independent guarantee in principle, in practice the different attitude to the international and domestic trade causes the dispute in the theory. The independent guarantee will be used wildly in the practice more and more along with our country's economic activity and international market further fusion, especially with our specialized bonding company grows strong in particular as well as the bank and insurance company's international guarantee service develops and the expands. The immaturity on the academic research and legislation practice will hinder the footsteps of the new thing's growth and development. So we should strengthen the research of the independent guarantee. In this article, the author tries hard to explain the necessity and the feasibility of the independent guarantee in our country with the aid of the discussion about some legal matters of the independent guarantee. At last, the author gives some suggestion about the establishment of the independent guarantee in our country.