Research On The Legalissues Of Independent Guarantee Fraud Exception

With the development of economic globalization,the subjects of international commercial transactions tend to pursue the value orientation of efficiency and convenience,and a new type of guarantee,namely independent guarantee,emerges at the historic moment.At the same time,the independence of the independent guarantee provides the beneficiary with the opportunity to cheat,which fundamentally undermines the principle of fair transaction.In order to balance the interests between the applicant and the beneficiary,most domestic laws and international conventions recognize the“fraud exception” principle of independent guarantee while accepting the“independence” principle of independent guarantee.The legal status of independent guarantee system had not been clear in china for many yeras,which led to the situation of shortage of legal system in dealing with independent guarantee disputes.On November 18,2016,the supreme people’s court promulgated the "provisions of the supreme people’s court on several issues concerning the trial of independent guarantee dispute cases",which provided a unified referee scale for the courts at all levels in handling independent guarantee disputes.It has made specific provisions on the application and fraud of independent guarantee,but the problems of the type of fraud and the standard to prove fraud are not clear enough,which have brought difficulties to the litigation of independent guarantee fraud in practice.With the continuous development of “One Belt And One Road”,independent guarantee will be more widely applied and developed,and fraud is the main embodiment of risk of independent guarantee,so it is of great significance to study the fraud of independent guarantee.The full text includes three parts: the quotation,the body and the conclusion.The body is divided into four chapters.The chapter one proposes the relationships between independentguarantee and fraud.In the first part,the general theory of independent guarantee is summarized by the introduction of the concept,characteristics,form and parties of the independent guarantee.And then,It explains the causes of fraudulent behavior by analyzing the underlying attributes of the independent guarantee.Finally,the definition of independent guarantee fraud is sorted out through the study of the term "fraud".The chapter two specifically discusses the identification of fraud exceptions for independent guarantees.First,the type of fraud is classified,including the lack of factual basis and document fraud.Furthermore,through the introduction of the identification of fraud exceptions by the representative countries of two major legal systems and international conventions,the judicial application principles for the identification of fraud exceptions are summarized.The chapter three introduces the defense of fraud exceptions.Firstly,the forming foundation for the defense of fraud exceptions is explained.Secondly,the subjects of the fraud exception defense are analysed.The subjects of different types of fraud are different,including the subject who exercises the right of defense when the claim is lacking in fact,and the subject who exercises the right of defense when the document is false or forged.Finally,the remedies for fraud exception,including the conditions for obtaining remedy and the means of relief,are introduced.The chapter four discusses the improvement of the independent guarantee fraud exception in China,including the status quo of the independent guarantee fraud exception and the independent guarantee judicial interpretation of the main provisions on fraud exception.Finally the perfection suggestions for the fraud exception provisions in the judicial interpretation of the independent guarantee are put forward.