国际银行独立保函欺诈例外原则研究

发布时间：2018-11-19 08:38

【摘要】：在现代的民法理论上,担保可划分为物的担保和信用担保两大类型,前者是以债务人或第三人的特定财产来担保债权人债权实现；后者又称为人的担保,是以信用来担保债权人债权的实现。但由于各国物的担保立法差别太大,冲突多的缘故,银行信用担保应运而生,其主要形式就是银行保函和备用信用证,性质属于独立担保关系,与传统的从属性保证关系最大区别在于保证人所享有的权利截然不同：独立保函享有权利非常有限,只要独立保函受益人提出付款要求及提交的单据表面与保函规定的付款条件相符,担保人就得绝对付款,且不享有属于债务人的任何抗辩权,唯一的抗辩权便是“欺诈例外抗辩”,即独立保证人能提供受益人的索款具有欺诈性,且是实质性的,明确的、毫无疑问的证据时,向法院申请签发禁付令或采取保全措施并被同意后,他才有权拒绝付款。论文包括四个部分：第一部分既介绍了欺诈例外原则的含义与特征,又从经济社会、法律角度阐释了该原则的成因,同时运用法理学知识予以分析其法理依据。第二部分详细比较分析了两大法系代表国家、国际商事组织以及国际公约在国际银行独立保函业务实践中的欺诈认定标准,得出结论：欺诈应当采用“实质性欺诈”标准以及重点列举典型欺诈行为两者相结合的方式进行界定。第三部分,国际银行独立保函欺诈的救济手段。在实践中银行独立保函欺诈情况时常出现,国际上对此没有统一的救济措施,从各国的司法实践来分析,存在常用救济手段,如法院禁令、保全措施命令以及Mareva禁令。第四部分,在前三部分的基础上结合国际银行独立保函欺诈例外原则的一般理论和国际实践,提出完善我国银行独立保函欺诈例外原则的建议,以更好发挥信用担保在我国多元化担保方式中的重要作用。
[Abstract]:In modern civil law theory, security can be divided into two types: real security and credit guarantee. The former is to guarantee creditor's rights by the specific property of the debtor or the third party. The latter is also called the person's guarantee, is to guarantee the creditor's rights realization by the credit. However, due to the fact that there are too many conflicts and differences in the legislation of guarantee of property in various countries, bank credit guarantee emerges as the times require, and its main form is bank guarantee and standby letter of credit, which belongs to the independent guarantee relationship. The biggest difference from the traditional assuredness guarantee is that the guarantor's rights are very different: the rights of the independent guarantee are very limited, As long as the claim for payment and the documents presented by the beneficiary of the independent guarantee are prima facie consistent with the terms of payment stipulated in the guarantee, the guarantor shall be entitled to absolute payment and shall not have any right of defence belonging to the debtor, The only defence is the "exception to fraud defence", that is, when an independent guarantor is able to provide fraudulent, substantial, clear and unquestionable evidence of the beneficiary's claim, He has the right to refuse payment only after he has applied to the court for an injunction or protective measure. The thesis includes four parts: the first part not only introduces the meaning and characteristics of the principle of fraud exception, but also explains the causes of the principle from the angle of economy and society, and analyzes its legal basis with the knowledge of jurisprudence. In the second part, the author compares and analyzes the standards of fraud in the practice of independent guarantee business of international banks, which are represented by two legal systems, international commercial organizations and international conventions. The conclusion is that fraud should be defined by the standard of "substantial fraud" and the combination of enumerating typical fraud. The third part, the international bank independent guarantee fraud relief means. In practice, bank independent guarantee fraud often appears, there is no unified relief measures in the world. From the judicial practice of various countries, there are common remedies, such as court injunction, preservation measure order and Mareva injunction. The fourth part, on the basis of the first three parts, combining with the general theory and international practice of the international bank independent guarantee fraud exception principle, puts forward some suggestions to perfect the exception principle of independent guarantee fraud in our country. In order to better play the role of credit guarantee in the diversification of our country.
【学位授予单位】：湖南师范大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D996;F740.4

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