论信用证项下进口押汇的法律问题

发布时间：2018-12-14 00:30

【摘要】：信用证项下进口押汇业务是银行在开展国际业务中给进口商提供的一项融资服务。随着全球经济一体化的发展和国与国之间的贸易往来的日益增多,这项业务在国际经济交往中也得到了广泛的开展。但是目前我国有关信用证项下进口押汇的法律法规还不完善,并且缺乏相关的司法解释,银行在实践操作中办理进口押汇业务时,其操作流程与我国信托法和担保法规定在内容上有诸多的矛盾。具体表现在：信托收据与抵押、质押担保并存的矛盾,物的担保与人的保证优先性的矛盾,质物的处置与质押权存续效力的矛盾。在银行和押汇申请人出现纠纷时,银行面临着进口商和保证人的种种抗辩,传统的担保制度已经不足以保障银行的利益。另外,进口押汇业务中,押汇银行面临的客户资信风险、市场风险和信托收据带来的风险,都使得押汇行的利益得不到保障。因此,对进口押汇法律问题的研究,不仅具有理论价值,而且对银行实务的开展有实践意义。本文根据我国进口押汇业务存在的问题并通过分析和比较国内外的相关制度,来完善我国的进口押汇法律制度,以达到开展进口押汇业务时银行和进口商双赢的目标。因此,借鉴国外担保制度的有效实践,考虑如何实现我国银行业务开展中通常用到的信托收据的完美结合,在现实生活中非常必要。法的移植是一项十分复杂的工作,要避免不加选择地盲目移植,选择优秀的、适合本国国情和需要的法律进行移植,注意国外法与本国法之间的同构性和兼容性,注意法律体系的系统性,同时法的移植要有适当的超前性。合理构建我国进口押汇法律制度,在实务操作方面是完善进口押汇协议,在协议中明确信托财产和抵押质押标的物划清界限,尽量避免概念的混淆引起法律冲突,影响银行的权益。在制度层面引进让与担保制度,使其与信托收据合理的承接起来,给押汇行和押汇申请人提供平衡的保护；建立信托登记公示制度,实现对信托财产权属状态的公示,保证银行的权益和进口押汇业务的顺利开展。另外,需要注意的是银行在选择客户或授信时一定要谨慎设计担保措施,来保证银行的权益。
[Abstract]:L / C is a financing service provided by banks to importers in international business. With the development of global economic integration and the increasing trade between countries, this business has been widely carried out in international economic exchanges. However, at present, the laws and regulations relating to the import of documentary documents under letters of credit in our country are not perfect, and there is no relevant judicial explanation. When banks deal with the business of import bills in practice, There are many contradictions between the operation flow and the provisions of our trust law and guarantee law. The concrete manifestation is: trust receipt and mortgage, the contradiction of pledge guarantee, the contradiction between the guarantee of things and the priority of guarantee, the contradiction between the disposition of pledge and the validity of pledge right. When there is a dispute between the bank and the applicant, the bank is faced with various defences from the importer and guarantor. The traditional guarantee system is not enough to protect the interests of the bank. In addition, the credit risk, market risk and trust receipt risk faced by the documentary bank make the interest of the documentary bank not to be protected. Therefore, the study on the legal issues of import bills is not only of theoretical value, but also of practical significance to the development of banking practice. According to the problems existing in the import documentary bill business in our country and by analyzing and comparing the relevant systems at home and abroad, this paper tries to perfect the legal system of import documentary bill in our country, so as to achieve the goal of win-win situation between the bank and the importer when carrying out the import documentary bill business. Therefore, it is very necessary in real life to learn from the effective practice of foreign guarantee system and consider how to realize the perfect combination of trust receipt which is usually used in the development of banking business in our country. The transplantation of law is a very complicated task. It is necessary to avoid blind transplantation without any choice, to select excellent laws that are suitable to the national conditions and needs of our country, and to pay attention to the homogeneity and compatibility between foreign and domestic laws. Attention should be paid to the systematization of the legal system, and at the same time, the transplantation of the law should be appropriate. The reasonable construction of our country's legal system of import bill of exchange is to perfect the agreement of import bill in practice, to make clear the boundary between the trust property and the subject matter of mortgage pledge in the agreement, to avoid the confusion of the concept and cause the legal conflict as far as possible. Affect the rights and interests of banks. In the institutional level, the transfer guarantee system is introduced to make it reasonable to accept with the trust receipt, and to provide balanced protection for the bank and the applicant; Establishing the trust registration and publicizing system, realizing the public announcement of the state of the trust property right, and ensuring the smooth development of the bank's rights and interests and the import bill of exchange business. In addition, the bank must carefully design the guarantee measures to protect the bank's rights and interests when selecting customers or granting credit.
【学位授予单位】：大连海事大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D996.2

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