Study On The Exeption Principle Of L/C Fraude

Letter of credit has obtained the widespread application by its unique superiority, becoming now the most main payment way in the international trade, with the reputation of "the international commercial blood". "The principle of independences and abstract" is precisely the root of letter of credit unique superiority and the cornerstone by which the letter of credit system can exist and develop. However in reality, "the principle of independences and abstract" is often used by the evil intention carries on cheat. When one kind of principle of legality suffers from being abused because of its intrinsic flaw, to carry on the recovery and the balance through one kind of exceptional rule then becomes a necessity. "The cheat exception" principle is precisely based on such needs to produce arid develop. This principle's essence is the national judicature strength based on the fair just principle involved in foreign trade relations, making every effort to achieve one balance of benefit between the various litigants in the letter of credit legal relationship.The letter of credit fraude exceptional principle dated back to the 1940s in the USA, afterwards various countries such as England, Germany, and Canada and so on also established this principle. International convention didn't make this problem form unified standards and rules , but it left this question to the national law. But because of the differences in understanding letter of credit mechanism as well as judicial tradition, the various countries' courts are using different standards to measure the aspects such as the fraude limits, the request of presenting evidence, the scope of exempting the responsibility and stopping authorizing exercises and so on when they are applying "the fraude exception principle". The judicial standard is not identical which has affected the development of the international trade. Our country is also facing the question which urgently waits to be solved when the principle is being applied, which is also related to our country's lag of the theoretical research on it.Therefore studying the fraude exceptional principle in the foundation which the former scholar studied to provide the essential reference for further consummates our country letter to credit fraude exceptional system has the practical significance.This article utilizes the basic principles of the jurisprudence, the people legal science, business legal science, the comparative law and historical inspection, the case proof, the value analysis and the generalized analysis method to conduct the research on the letter of credit fraude exceptional principle, which is divided into four chapters to carry on the elaboration. The first chapter proposes the concept of letter of Credit Fraudes, by analyzing the hen and title reason which the letter of credit fraude and elaborating "the principle of independences and abstract" is the important reason for inducing the fraude. The second chapter elaborates the establishment and the developing processes of the letter of credit fraude exceptional principle, by proposing the three relations produced by it (i.e. public peace and order retention theory. Honest credit theory. Benefit balanced theory) and analysing its value orientation (i.e. defend individual justice based on general justice, give dual attention to fairness in pursuit of benefit). The relations between the fraude exceptional principle and the principle of independences and abstract are proved and to maintain a moderate and balanced relation between the two is proposed as well. The third chapter elaborates the related question in applying the letter of credit fraude exceptional principle, embarking from the principle of the benefit balance, some views about the fraude limits, the suitable important constitution document, certificate standard, realization ways as well as suitable elimination of it are given. The fourth chapter puts forward some concrete proposals such as entailing legislation, enhancing the request of issuing the stopping payment, comprehensively balancing all litigants' benefit, enhancing the quality of the judges and the judicature level of the court and so on. In view of the existing questions when our country is applying it.The innovation of this article lies in proposing the benefit balanced methods to deal with the theoretical and practical questions of the letter of credit fraude exceptional principle. The benefit balance is the basic rule of the produce and transformation of the letter of credit system, it is the important theoretical base on which the fraude exceptional principle can be established. And it is also the basic reason for which the fraude exceptional principle and the principle of independences and abstract keep in balance mutually. When the fraude exceptional principle is applied specifically, like the standard of "substantive cheat", the elimination rule of the fraude exceptional principle, the risk shares taken by the good-willed beneficiaries as well as the assignment of the responsibility in the judicial process to present evidence, the benefit balance of all litigants when issuing the prohibition rule, all takes the benefit balance as the basic reference.