Research On The Legal Issues Of Independent Guarantees Fraud

The independent guarantee includes major types such as demand guarantees and standby letters of credit.Because of its independence and documentary characteristics,it is easy to be abused by beneficiaries for malicious payment.Therefore,various countries generally recognize the exception payment rules for independent guarantee fraud,which have been continuously revised and improved in judicial practice,and have shown a trend of typification.In the absence of relevant legal norms,the Chinese courts have determined the fraudulent acts of independent guarantees based on the principle of good faith.Later,the "Provisions on Several Issues Concerning the Trial of Independent Guarantee Dispute Cases" issued by the Supreme People’s Court in 2016 made provisions on the fraud situation,standard of proof and payment stop procedure of independent guarantee,and set up the independent guarantee fraud and payment exception rules in China,which is of great significance to judicial practice.However,compared with the practice of other countries,the types of independent guarantee fraud stipulated in the "Judicial Interpretation of Independent Guarantees" are missing,and some elements are unclear.In court proceedings,the identification of independent guarantee fraud is confused,and Independent letter of guarantee fraud suspension of payment adjudication issued relatively random.There is still room for improvement of the above issues.In this regard,this paper takes our country’s independent guarantee fraud types,the identification and remedies as perspectives,and firstly introduces the independence,documentary,irrevocable,and relatively unconditional characteristics of independent guarantees and the possible independent guarantee frauds that may be caused by them.Through Comparative study and data analysis of judicial cases,the necessity of reviewing our country’s independent guarantee fraud and its payment exception system is proposed.Secondly,this paper examines the types of independent guarantee fraud and the review of requirements,and analyzes the obvious unfairness that should not be included in the independent guarantee fraud type,the basic transaction violation that should be included in the independent guarantee fraud type,and the document fraud should be further clarified and improved.The reasons for the confusion in the review of guarantee fraud are analyzed in three parts: the lack of principled determination standards,the ambiguity of the general clauses,and the inaccurate grasp of the evidence standards.Thirdly,in the judicial practice,the arbitrariness of the ruling on the suspension of payment for independent guarantee fraud is analyzed from the perspective of legal rules and review considerations.It is analyzed that the legal connotation of the damage element in the independent guarantee fraud stop payment rules is unclear.And the question of the calculation scope of guarantee requirements,and discussed the harm of arbitrariness of independent guarantee fraud stop payment rulings and the necessity of introducing the principle of "measure of interest" in the judgment of Suspension of payment.Meanwhile,based on the above analysis,this paper puts forward suggestions to improve the types and identification standards of independent guarantee fraud in China,and puts forward relevant views on the improvement of the Suspension of payment of independent guarantee fraud.This paper holds that as a type of guarantee with independent characteristics issued by banks or non-bank financial institutions in China,the independent letter of guarantee plays an important role in China’s commercial transactions.The fraud exception rule of independent guarantee is an important remedy to prevent the independence of independent guarantee from being abused.The definition of fraud type,the standard of fraud identification and the rigor of the decision of suspension of payment should be further improved and paid attention to.Among them,as for the type of independent guarantee fraud,it is advisable to add the case that the underlying transaction is illegal and modify the document fraud requirements.For the identification of the fraud of the independent letter of guarantee,it is advisable to make clear the principle identification standard and correctly grasp the evidence standard.Regarding the remedy of the suspension of the independent letter of guarantee,it is advisable to clarify the consideration factors under the principle of "measure of interest",and to make corresponding improvements to the requirements for damage and guarantee.