Research On Legal Regulation Of Independent Letter Of Guarantee Fraud

With the strengthening of economic globalization and the deepening of China’s "One Belt and One Road" initiative,as an independent guarantee tool between commercial transaction subjects,independent guarantee has greatly improved the efficiency of international commercial transactions because of its independence from the legal relationship of the underlying transaction and the documentary nature of complying with the presentation of documents and payment rules.Therefore,the business field,region,scale and quantity of independent guarantee are increasing year by year.However,it is precisely because of the independence and documentary nature of independent guarantee that independent guarantee not only improves the efficiency of commercial transactions,but also provides the possibility and convenience for the beneficiary to carry out independent guarantee fraud,so countries have established the fraud exception principle of independent guarantee.However,different countries have different regulations on how to specify and apply the fraud exception principle of independent guarantee.As far as China is concerned,the legal regulation of independent letter of guarantee fraud is mainly reflected in the judicial interpretation formulated by the Supreme People’s Court,but there are many problems in this interpretation from the legislative level and judicial application,which need to be studied and improved.This paper starts with the No.109 guiding case published by the Supreme People’s Court,and after a brief introduction of the case,it leads to the main object of this paper,namely the legal regulation of independent letter of guarantee fraud in China.Then,to facilitate the follow-up studies,articles in independent guarantee and its fraud first introduces the related theory problems,clear the meaning and characteristics of the independent guarantee,independent guarantee related legal relationship as well as the classification of independent guarantee,then the independent guarantee two aspects of fraud in the legislative level and judicial application of the current situation is analyzed.Through the introduction of guiding cases and the description of the status quo of the legal regulation of independent letter of guarantee fraud,This paper points out that the legal regulation of independent letter of guarantee fraud in China has some problems,such as the lack of superior legal support of judicial interpretation as the main legal basis,the lack of bona fide payment standard against letter of guarantee fraud,the prominent parallel procedure in judicial practice,and the unclear scope of legal relationship examination of basic transaction.Furthermore,the author puts forward some suggestions on how to legislate the independent guarantee system separately to solve the problem of lack of upper law in judicial interpretation,distinguish and identify the standard of bona fide payment against guarantee fraud,set up reasonable dispute resolution clauses to avoid parallel procedure problems and adhere to the principle of "limited and necessary" review of the type of basic transaction.Through the analysis and research on the legal regulation of independent letter of guarantee fraud,it is expected that China can establish a complete independent letter of guarantee system on the legislative level.In judicial practice,the trial of independent guarantee fraud dispute cases can adhere to the typed basic transaction review principle,better play the efficient and safe role of independent guarantee in commercial activities,and provide guarantee for the construction of "One Belt and One Road" in China.