信用证欺诈例外原则的适用研究
发布时间：2018-08-09 14:18
【摘要】：信用证作为当前国际贸易重要的支付工具和融资手段,以银行信用取代商业信用,较好地解决了交易双方的风险分担问题,推动和保障了国际贸易的快速发展。19世纪初,随着国际贸易交往的频繁,当事人急需一种更为安全、快捷的支付方式,信用证应运而生,并逐渐在各国普遍推广及应用。信用证最大的优势在其所特有的独立抽象原则,此原则作为信用证的基石,保障了信用证支付功能的实现。因此,各国法院在处理信用证争端时,优先考虑对其的适用。然而独立抽象原则在保障信用证支付的同时,也为一些不法分子实施欺诈提供了可乘之机。从20世纪80年代开始,信用证欺诈的案件大幅增加,这不仅阻碍了国际贸易的顺利进行,且对信用证交易机制造成了严重危害。为了解决此问题,信用证欺诈例外原则应运而生。 信用证欺诈例外原则首先在美国的司法实践中得以确立,随后在世界各个国家及地区得以发展。信用证欺诈例外原则并不是对独立抽象原则的否定,而只是对其在例外情况下的一种补充,它是指对已经发生的欺诈行为,允许银行拒付或由法院颁发禁付令。对信用证欺诈例外原则的适用,国际社会没有形成统一的标准和规则。各国在适用该原则时都力求实现交易双方的利益平衡,所以对欺诈例外原则都有严格的适用标准。我国在信用证欺诈方面制定的专门立法的也并不完善,存在许多有待解决的问题。鉴于此,笔者在总结先前学者对信用证欺诈例外原则研究的基础上提出己见,以期为完善我国信用证欺诈例外立法及司法实践贡献绵薄之力。 本文分为四部分对信用证欺诈例外原则进行论述。第一部分,对信用证欺诈例外原则进行概述。从信用证欺诈例外原则的含义入手,分析其产生的原因及理论基础。第二部分,对信用证欺诈例外原则予以比较法分析。通过对信用证欺诈例外原则在英美法系、大陆法系国家的确立和发展,以及国际商事惯例及国际公约中的相关规定进行分析,比较它们在适用方面的优势和不足。第三部分,对信用证欺诈例外原则的适用问题进行研究。分别从其适用条件、适用的法律后果、适用中的举证责任及排除情形阐述了自己的看法。第四部分,在介绍了我国信用证欺诈例外原则的立法和司法现状,分析存在的问题的基础上,提出了完善建议。
[Abstract]:As an important means of payment and financing in current international trade, L / C replaces commercial credit with bank credit, which solves the problem of risk sharing between both sides of the transaction and promotes and guarantees the rapid development of international trade at the beginning of the 19th century. With the frequent international trade exchanges, the parties are in urgent need of a more secure and fast way of payment. Letters of credit emerge as the times require, and are gradually popularized and applied in various countries. The biggest advantage of the letter of credit lies in its unique principle of independence and abstraction, which, as the cornerstone of the letter of credit, guarantees the realization of the payment function of the letter of credit. Therefore, when dealing with the dispute of letter of credit, the courts of various countries give priority to its application. However, the principle of independence and abstraction not only guarantees the payment of letters of credit, but also provides an opportunity for some lawbreakers to carry out fraud. Since the eighties of the 20th century, the cases of letter of credit fraud have increased dramatically, which not only hinders the smooth progress of international trade, but also causes serious harm to the trading mechanism of letters of credit. In order to solve this problem, the principle of fraud exception arises at the historic moment. The exception principle of letter of credit fraud was first established in the judicial practice of the United States, and then developed in various countries and regions of the world. The principle of fraud exception of letter of credit is not the negation of the principle of independence and abstraction, but only a supplement to the principle in exceptional circumstances. It means that the bank may refuse to pay or the court may issue an injunction to the fraud that has occurred. There are no uniform standards and rules for the application of the exception principle of letter of credit fraud. When applying this principle, all countries strive to achieve the balance of interests between the parties to the transaction, so there are strict applicable standards for the principle of fraud exception. The special legislation on letter of credit fraud in our country is not perfect, there are many problems to be solved. In view of this, the author puts forward his own views on the basis of summarizing the previous researches on the principle of fraud exception of letter of credit, in order to contribute to the perfection of the legislation and judicial practice of fraud exception of letter of credit in China. This paper is divided into four parts to discuss the exception principle of letter of credit fraud. The first part summarizes the exception principle of letter of credit fraud. This paper starts with the meaning of the principle of fraud exception of letter of credit, and analyzes its causes and theoretical basis. In the second part, the author makes a comparative analysis of the principle of fraud exception in letter of credit. Through the analysis of the establishment and development of the exception principle of letter of credit fraud in the common law system, the civil law system countries, and the relevant provisions of international commercial practice and international conventions, the advantages and disadvantages in their application are compared. In the third part, the application of the principle of fraud exception in letter of credit is studied. The author expounds his own views from its applicable conditions, applicable legal consequences, the burden of proof in the application and the circumstances of exclusion. In the fourth part, on the basis of introducing the legislation and judicial status of the principle of fraud exception of letter of credit in China, and analyzing the existing problems, the author puts forward some suggestions.
【学位授予单位】：郑州大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D996;F740.4
本文编号：2174345
[Abstract]:As an important means of payment and financing in current international trade, L / C replaces commercial credit with bank credit, which solves the problem of risk sharing between both sides of the transaction and promotes and guarantees the rapid development of international trade at the beginning of the 19th century. With the frequent international trade exchanges, the parties are in urgent need of a more secure and fast way of payment. Letters of credit emerge as the times require, and are gradually popularized and applied in various countries. The biggest advantage of the letter of credit lies in its unique principle of independence and abstraction, which, as the cornerstone of the letter of credit, guarantees the realization of the payment function of the letter of credit. Therefore, when dealing with the dispute of letter of credit, the courts of various countries give priority to its application. However, the principle of independence and abstraction not only guarantees the payment of letters of credit, but also provides an opportunity for some lawbreakers to carry out fraud. Since the eighties of the 20th century, the cases of letter of credit fraud have increased dramatically, which not only hinders the smooth progress of international trade, but also causes serious harm to the trading mechanism of letters of credit. In order to solve this problem, the principle of fraud exception arises at the historic moment. The exception principle of letter of credit fraud was first established in the judicial practice of the United States, and then developed in various countries and regions of the world. The principle of fraud exception of letter of credit is not the negation of the principle of independence and abstraction, but only a supplement to the principle in exceptional circumstances. It means that the bank may refuse to pay or the court may issue an injunction to the fraud that has occurred. There are no uniform standards and rules for the application of the exception principle of letter of credit fraud. When applying this principle, all countries strive to achieve the balance of interests between the parties to the transaction, so there are strict applicable standards for the principle of fraud exception. The special legislation on letter of credit fraud in our country is not perfect, there are many problems to be solved. In view of this, the author puts forward his own views on the basis of summarizing the previous researches on the principle of fraud exception of letter of credit, in order to contribute to the perfection of the legislation and judicial practice of fraud exception of letter of credit in China. This paper is divided into four parts to discuss the exception principle of letter of credit fraud. The first part summarizes the exception principle of letter of credit fraud. This paper starts with the meaning of the principle of fraud exception of letter of credit, and analyzes its causes and theoretical basis. In the second part, the author makes a comparative analysis of the principle of fraud exception in letter of credit. Through the analysis of the establishment and development of the exception principle of letter of credit fraud in the common law system, the civil law system countries, and the relevant provisions of international commercial practice and international conventions, the advantages and disadvantages in their application are compared. In the third part, the application of the principle of fraud exception in letter of credit is studied. The author expounds his own views from its applicable conditions, applicable legal consequences, the burden of proof in the application and the circumstances of exclusion. In the fourth part, on the basis of introducing the legislation and judicial status of the principle of fraud exception of letter of credit in China, and analyzing the existing problems, the author puts forward some suggestions.
【学位授予单位】：郑州大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D996;F740.4
【引证文献】
相关硕士学位论文 前1条
1 郝艳红;A公司出口贸易中信用证风险及防范对策研究[D];西北农林科技大学;2013年
，本文编号：2174345
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