Independent Guarantees System

As an emerging security system, the System of Independent Guarantee has been triggering many arguments toward it no matter in theory or in practice. Therefore, many scholars begin to conduct the study of independent guarantee systematically. Much of the research has been made on this study, but in whole, the author think the following two aspects have yet to be explored in depth. On the one hand, as regarding some specific system problem in the independent guarantee, information about this that author have ever met is generally only focus on the introduction of a rule, and is written by the way of making notes for the rules instead of a comparative study of the relevant rules. On the other hand, under the situation that specific legislative proposals have been put forward for the contract of independent guarantee in "The Proposal for China's Civil Code Draft", however the current research literature on these proposals have not been given sufficient attention. And there are no quotes or comments of the"proposal"in the information that author have met.This study has the following meanings: The Independent Guarantee come into being mainly because of the expansion of international economic exchanges, trade diversification and complication, while the traditional way of guarantee can not meet the modern needs of international trade. Therefore, it is necessary to recognize the legitimacy of independent guarantee in China's domestic law. Independent Guarantees is a product of practice, if there is no law to regulate, it would lead to unknown effectiveness to the acts and resulting in chaos. It's stipulated in the "General Principles of Civil Code" Article 142, paragraph 3 that we can apply to international practice when there is no corresponding regulations can be found in our laws or in the international treaties which we contracting or taking part in. However, there are several international practices about the independent guarantee. And under the circumstance that in the absence of domestic law to confirm the legitimacy of independent guarantee and to make some basic express provisions on it, if applicable practice also has not been used in the contract by the party involved, this will lead to a state of confusion of different parties'responsibility in Independent Guarantees. And without the support of domestic legislation, the guarantee business of banks and security institutions is bound to be questioned about its legitimacy and rationality. Only with corresponding provisions via the legislation and the establishment of an independent security system, so that the parties involved in business practice be able to accurately predict their responsibilities and the consequences of their acts and also the law's attitude about this. Only by doing above can we move forward instead of wasting time in speculating the attitude of legislation and the judicature toward the independent guarantee system. Only with above can we escape from the negative effect to the economic development and can live up to our goal that law is at the service for economyThis paper is mainly written in a way of giving illustration and comparative study. And base on practice and the combination of practical cases, writer try to reveal the problem exists in practice for the independent guarantee, analyze the causes of the problem and then put forward relevant proposals. And finally through making a comparative study of domestic and international relevant legislation, theory and practice, author try to sum up experience, analyze the variance and put forward the proposals about system completion while taking account of the actual situation of China. In this paper, firstly, author make a brief introduction to the definition, characteristics, background and form of independent guarantee; Secondly, explain the source of independent guarantee in laws; Thirdly, discuss the practice of legislation and judicature for the independent guarantee in China; Finally, comes the keystone of this article, using "The Proposal for China's Civil Code Draft" which under the charge of Liang Huixing and drafted by the China's Civil Code Legislative Research Team as a prelude, from the perspective of an independent guarantee contract, author try to make a comparative study of the provisions for the specific problems about independent guarantee in international conventions and practice; make comments and raise up suggestion of making amendments to the "Proposal"; and strive to offer some advice for the legislation of Independent Guarantee in China's domestic law.