论信用证欺诈例外原则的适用
发布时间：2018-08-18 14:36
【摘要】：信用证是国际贸易中重要的结算支付工具,因其设计精巧而被称为“天才的创造”,对国际贸易的快速发展发挥了巨大的推动和保障作用。信用证所取得的巨大成功归于其所特有的独立性原则,但该原则也为一些不法商人所利用,信用证欺诈案件的增多,严重冲击了正常的国际贸易和金融秩序,给国际经贸活动带来了巨大危害。因此,信用证欺诈例外原则作为信用证基本原则的补充逐渐被大多数国家所认可。我国2006年1月1日开始实施的《最高人民法院关于审理信用证纠纷案件若干问题的规定》规范了信用证欺诈行为,体现了信用证欺诈例外原则的主旨,但是在对第三方欺诈的规制等方面仍然不够完善。 本文拟就五个方面试作论述： 第一部分主要以信用证欺诈例外原则产生的基础为出发点展开论述,具体分为信用证的概念、特点和性质、信用证欺诈及其种类；第二部分主要论述信用证欺诈例外原则的内涵及理论基础,重点论述了“独立抽象原则”是诱发欺诈的重要原因。论证了欺诈例外原则与独立抽象原则的关系,提出欺诈例外原则与独立抽象原则应保持一种适度和平衡的关系。论述了信用证欺诈例外原则产生的理论基础(公共秩序保留理论、诚实信用理论、利益均衡理论等)；第三部分阐述了信用证欺诈例外原则的确立与发展过程,主要从信用证欺诈例外原则的排除出发,从欺诈例外原则的排除情形、欺诈例外原则的例外的必要性上说明了信用证欺诈例外原则的排除；第四部分主要对信用证的司法救济和防范措施入手,论述了信用证欺诈行为发生后所能采取的避免或减少损失的措施和方法：禁付令的相关理论、禁付令之外的其他相似的救济；同时,通过对买方和开证行对信用证欺诈的防范的分析,列明了买方和开证行对信用证欺诈防范的具体措施；第五部分则是从中国信用证欺诈例外的立法、中国现阶段信用证欺诈例外的司法实践方面讲述了我国信用证欺诈例外的立法现状、现阶段立法上、司法实践上存在的一些问题并进行了分析,提出了建议。 本文旨在通过对信用证基本理论的分析研究的基础上,对国外已经形成信用证欺诈例外制度的理论和司法实践进行深入地研究,结合我国的国际贸易实践,对我国目前有关信用证欺诈例外原则的适用的立法和司法实践进行客观地分析,并提出自己的观点和意见。
[Abstract]:Letter of credit is an important settlement and payment tool in international trade. Because of its exquisite design, it is called "genius creation", which plays an important role in promoting and protecting the rapid development of international trade. The great success of letters of credit is attributed to its unique principle of independence, but this principle has also been used by some illegal businessmen. The increase in fraud cases of letters of credit has seriously affected the normal international trade and financial order. It has brought great harm to international economic and trade activities. Therefore, as a supplement to the basic principle of letter of credit, the exception principle of letter of credit fraud has been accepted by most countries. The provisions of the Supreme people's Court on several issues concerning the handling of disputes over letters of credit, which began to be implemented on January 1, 2006, regulate the fraud of letters of credit, and embody the purport of the principle of exception to letter of credit fraud. However, the regulation of third party fraud is still not perfect. This paper intends to discuss five aspects: the first part is mainly based on the principle of fraud exception of letter of credit as the starting point, specifically divided into the concept, characteristics and nature of the letter of credit, letter of credit fraud and its types; The second part mainly discusses the connotation and theoretical basis of the fraud exception principle of letter of credit, and emphasizes that "the principle of independence and abstraction" is the important reason to induce fraud. This paper demonstrates the relationship between the principle of fraud exception and the principle of independent abstraction, and points out that the principle of fraud exception and the principle of independent abstraction should maintain a moderate and balanced relationship. This paper discusses the theoretical basis of the principle of fraud exception of letter of credit (the theory of public order reservation, the theory of honesty and credit, the theory of balance of interests, etc.) the third part expounds the establishment and development process of the principle of fraud exception of letter of credit. Mainly from the exclusion of fraud exception principle of letter of credit, from the exclusion of fraud exception principle, the necessity of exception of fraud exception principle explains the exclusion of fraud exception principle of letter of credit; The fourth part mainly starts with the judicial relief and preventive measures of the letter of credit, and discusses the measures and methods that can be taken to avoid or reduce the loss after the fraud of the letter of credit: the relevant theory of the restraining order. At the same time, through the analysis of the buyer and issuing bank to the letter of credit fraud prevention, listed the buyer and issuing bank to the letter of credit fraud prevention specific measures; The fifth part is from the Chinese letter of credit fraud exception legislation, China at the present stage of fraud exception of the judicial practice of China's letter of credit fraud exception legislative situation, the current legislation, Some problems in judicial practice are analyzed and some suggestions are put forward. Based on the analysis and study of the basic theory of letter of credit, this paper makes a deep research on the theory and judicial practice of the fraud exception system in foreign countries, and combines the international trade practice of our country. This paper makes an objective analysis on the legislation and judicial practice of the application of the principle of fraud exception of letters of credit in China, and puts forward its own views and opinions.
【学位授予单位】：中国海洋大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D922.28;D996.1;F740.4
本文编号：2189778
[Abstract]:Letter of credit is an important settlement and payment tool in international trade. Because of its exquisite design, it is called "genius creation", which plays an important role in promoting and protecting the rapid development of international trade. The great success of letters of credit is attributed to its unique principle of independence, but this principle has also been used by some illegal businessmen. The increase in fraud cases of letters of credit has seriously affected the normal international trade and financial order. It has brought great harm to international economic and trade activities. Therefore, as a supplement to the basic principle of letter of credit, the exception principle of letter of credit fraud has been accepted by most countries. The provisions of the Supreme people's Court on several issues concerning the handling of disputes over letters of credit, which began to be implemented on January 1, 2006, regulate the fraud of letters of credit, and embody the purport of the principle of exception to letter of credit fraud. However, the regulation of third party fraud is still not perfect. This paper intends to discuss five aspects: the first part is mainly based on the principle of fraud exception of letter of credit as the starting point, specifically divided into the concept, characteristics and nature of the letter of credit, letter of credit fraud and its types; The second part mainly discusses the connotation and theoretical basis of the fraud exception principle of letter of credit, and emphasizes that "the principle of independence and abstraction" is the important reason to induce fraud. This paper demonstrates the relationship between the principle of fraud exception and the principle of independent abstraction, and points out that the principle of fraud exception and the principle of independent abstraction should maintain a moderate and balanced relationship. This paper discusses the theoretical basis of the principle of fraud exception of letter of credit (the theory of public order reservation, the theory of honesty and credit, the theory of balance of interests, etc.) the third part expounds the establishment and development process of the principle of fraud exception of letter of credit. Mainly from the exclusion of fraud exception principle of letter of credit, from the exclusion of fraud exception principle, the necessity of exception of fraud exception principle explains the exclusion of fraud exception principle of letter of credit; The fourth part mainly starts with the judicial relief and preventive measures of the letter of credit, and discusses the measures and methods that can be taken to avoid or reduce the loss after the fraud of the letter of credit: the relevant theory of the restraining order. At the same time, through the analysis of the buyer and issuing bank to the letter of credit fraud prevention, listed the buyer and issuing bank to the letter of credit fraud prevention specific measures; The fifth part is from the Chinese letter of credit fraud exception legislation, China at the present stage of fraud exception of the judicial practice of China's letter of credit fraud exception legislative situation, the current legislation, Some problems in judicial practice are analyzed and some suggestions are put forward. Based on the analysis and study of the basic theory of letter of credit, this paper makes a deep research on the theory and judicial practice of the fraud exception system in foreign countries, and combines the international trade practice of our country. This paper makes an objective analysis on the legislation and judicial practice of the application of the principle of fraud exception of letters of credit in China, and puts forward its own views and opinions.
【学位授予单位】：中国海洋大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D922.28;D996.1;F740.4
【引证文献】
相关硕士学位论文 前2条
1 何旭;信用证欺诈例外原则的适用研究[D];郑州大学;2012年
2 郑传敬;论我国信用证欺诈的认定及其立法规制[D];安徽大学;2012年
，本文编号：2189778
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