论我国信用证欺诈的认定及其立法规制
发布时间：2019-03-28 09:07
【摘要】：信用证是国际贸易结算中最重要的支付方式。①其以银行信用证替代商业信用,解决了国际贸易双方互不信任的难题,增强了买卖双方的信心,得到了贸易双方的普遍认可。抽象独立性是信用证的本质特征,只要受益人提交的单据与信用证表面相符,银行即应予以承兑或付款。这给实践中的不法分子留下了可趁之机,他们往往利用信用证运行机制进行欺诈,骗取银行的款项。国际商会考虑到信用证欺诈的特殊性,并未对此类问题进行规定,而是将其留给各国国内法自行解决。 对于何谓信用证,我国《国内信用证结算办法》与《跟单信用证统一惯例》(简称UCP600)及《美国统一商法典》(简称UCC)有着不同的规定,与后两者相比较,我国信用证定义较为狭窄,随着实践的不断发展,该定义很难满足于社会的需求,因此,我国立法应借鉴UCP600和UCC的规定,在信用证概念中加入“承兑”和“书面”的描述。我国对信用证欺诈规定最为完备的法律文件当属最高人民法院2005年发布的《关于审理信用证纠纷案件若干问题的规定》(以下简称《规定》),该《规定》以列举的方式说明了信用证欺诈的情形。对于该规定的情形,理论界有着不同的看法。特别是在信用证欺诈主体的认定上,学者之间争议较大。经过综合分析,信用证欺诈应包括受益人单独实施的欺诈,受益人与第三人串通实施的欺诈,受益人与申请人合谋实施的欺诈。同时,在信用证欺诈的内容方面,应包括“单据欺诈”和“交易中的欺诈”两种情形。信用证欺诈的标准应为“实质性欺诈”。此外,为了更加明确信用证欺诈的外延,应将软条款信用证和信用证诈骗排除在信用证欺诈之外。 在对信用证欺诈救济前,应确定信用证欺诈的管辖法院和所应适用的法律。根据我国目前立法,信用证欺诈案件采取集中管辖,一般由中级以上法院管辖。在地域管辖方面,以侵权行为地法院管辖为主,兼采承认管辖原则。鉴于海事法院对信用证欺诈案件的相关管辖权,我国未来立法应明确界定海事管辖与普通管辖的范围,做好海事法院对涉嫌刑事案件的接纳工作。同时可视情况下放一部分标的额较小、影响轻微的案件由基层法院管辖。在信用证欺诈案件所应适用的法律方面,我国法律首先尊重当事人的意思自治,由当事人自行选择,在当事人没有选择的情况下,适用国际惯例或根据最密切联系地原则确定。信用证欺诈例外是对信用证欺诈的救济。我国最高院的《规定》与UCC相比,在信用证欺诈例外规定方面存在以下不足之处：(1)信用证止付申请受理条件过于苛刻；(2)缺乏对证据的主观要求；(3)欺诈救济的程序混乱。对此,我国《规定》应从以下方面进行完善：(1)引入美国的“禁令”制度；(2)明晰信用证欺诈纠纷的当事人；(3)增加对银行拒付权的规定。此外,在适用信用证欺诈例外原则对信用证欺诈进行救济的同时,还应注意信用证欺诈例外豁免情形。这样才能从总体上保证我国信用证欺诈例外制度的公正。 防范永远大于救济。在研究信用证欺诈及其救济的同时,信用证当事人也应加强自身防范,注重对交易对象的资信调查,参加国际性商事组织,未雨绸缪,才能将欺诈扼杀在摇篮中。当然,国际社会也应加强合作,争取早日制定反信用证欺诈的统一性国际规则。
[Abstract]:L/ C is the most important method of payment in international trade settlement. As a substitute for commercial credit with a bank letter of credit, it solves the problem of mutual distrust between the two parties, and enhances the confidence of both parties and is widely recognized by both parties. Abstract independence is the essential characteristic of the L/ C, so long as the document submitted by the beneficiary is in line with the surface of the L/ C, the bank shall be accepted or paid. This leaves a good opportunity for lawbreakers in practice, and they often use the L/ C mechanism for fraud and defraud the bank's money. The International Chamber of Commerce, taking into account the specificity of the letter of credit fraud, did not provide for such issues but left it to national law to resolve it. In the case of L/ C, the settlement method of L/ C in China> and the Uniform Customs for Documentary Credits (UCP600) and the Uniform Commercial Code of the United States (UCC) have different provisions, and the definition of L/ C in China is narrow in comparison with the latter. With the development of the practice, the definition is hard to meet the needs of the society. Therefore, our country's legislation should use the provisions of UCP600 and UCC to add the "acceptance" and the "in writing" in the concept of the letter of credit. The most complete legal documents for the fraud of L/ C in our country are the Provisions of the Supreme People's Court of the People's Court of the People's Republic of China (hereinafter referred to as the "Provisions") issued by the Supreme People's Court in 2005. In the case of this rule, the theoretical circle has different views Law. Especially in the cognizance of the fraud subject of the letter of credit, the dispute between the scholars is less As a result of the comprehensive analysis, the fraud of the L/ C shall include the fraud of the beneficiary's individual implementation, the fraud committed by the beneficiary and the third party, and the deception of the beneficiary and the applicant. treachery. At the same time, in terms of the content of the credit fraud, both "document fraud" and "Fraudulent in the transaction" should be included The criteria for the fraud of the letter of credit shall be "trunk>" subject fraud ". In addition, in order to further clarify the extension of the credit fraud, the soft-term letter of credit and the credit fraud should be excluded from the credit fraud in addition, prior to the fraud and relief of the letter of credit, it is to be determined that the jurisdiction of the letter of credit fraud and the application to be applied In accordance with the current legislation in our country, the case of a letter of credit fraud is subject to centralized jurisdiction, usually by the middle-level or higher The court is under the jurisdiction of the court. In terms of the area's jurisdiction, the jurisdiction of the court in tort is the main part, and the recognition pipe is taken. In view of the relevant jurisdiction of the maritime court on the case of the fraud of the letter of credit, the future legislation of our country should clearly define the scope of the maritime jurisdiction and the ordinary jurisdiction, and do well the connection between the maritime court and the suspected criminal case At the same time, a small portion of the case may be delegated to a lesser extent, with a minor impact on the grass-roots approach Under the jurisdiction of the court, in respect of the legal aspects to be applied in the case of the fraud case of the letter of credit, the law of our country first respects the party's self-government, and is selected by the parties. In the absence of the choice of the parties, the practice of international practice or the basis of the most close contact it is determined that the credit fraud exception is the fraud of the letter of credit The following defects are found in the fraud exception of the L/ C as compared with the UCC in China's highest court: (1) the acceptance condition of the letter of credit is too harsh; (2) there is a lack of subjective requirements for the evidence; and (3) the scope of the fraud relief In this respect, we should improve the following aspects: (1) introduce the "injunctions" system of the United States; (2) make clear the parties involved in the fraud dispute of the L/ C; and (3) increase the right to refuse to pay the bank. In addition, in the case of the application of the credit fraud exception principle to the relief of the credit fraud, it should also be noted that the credit fraud exception is the exception. No situation. In this way, we can guarantee the system of fraud exception of L/ C in general. It's just.......... ..@@ At the same time of studying the fraud and relief of the letter of credit, the party of the L/ C should also strengthen its own prevention, pay attention to the credit investigation of the transaction object, participate in the international commercial organization, and be prepared to take a better part in order to prevent the fraud. In the cradle, of course, the international community should strengthen its cooperation for the early development of a unified anti-credit fraud
【学位授予单位】：安徽大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D996;F740.4
本文编号：2448733
[Abstract]:L/ C is the most important method of payment in international trade settlement. As a substitute for commercial credit with a bank letter of credit, it solves the problem of mutual distrust between the two parties, and enhances the confidence of both parties and is widely recognized by both parties. Abstract independence is the essential characteristic of the L/ C, so long as the document submitted by the beneficiary is in line with the surface of the L/ C, the bank shall be accepted or paid. This leaves a good opportunity for lawbreakers in practice, and they often use the L/ C mechanism for fraud and defraud the bank's money. The International Chamber of Commerce, taking into account the specificity of the letter of credit fraud, did not provide for such issues but left it to national law to resolve it. In the case of L/ C, the settlement method of L/ C in China> and the Uniform Customs for Documentary Credits (UCP600) and the Uniform Commercial Code of the United States (UCC) have different provisions, and the definition of L/ C in China is narrow in comparison with the latter. With the development of the practice, the definition is hard to meet the needs of the society. Therefore, our country's legislation should use the provisions of UCP600 and UCC to add the "acceptance" and the "in writing" in the concept of the letter of credit. The most complete legal documents for the fraud of L/ C in our country are the Provisions of the Supreme People's Court of the People's Court of the People's Republic of China (hereinafter referred to as the "Provisions") issued by the Supreme People's Court in 2005. In the case of this rule, the theoretical circle has different views Law. Especially in the cognizance of the fraud subject of the letter of credit, the dispute between the scholars is less As a result of the comprehensive analysis, the fraud of the L/ C shall include the fraud of the beneficiary's individual implementation, the fraud committed by the beneficiary and the third party, and the deception of the beneficiary and the applicant. treachery. At the same time, in terms of the content of the credit fraud, both "document fraud" and "Fraudulent in the transaction" should be included The criteria for the fraud of the letter of credit shall be "trunk>" subject fraud ". In addition, in order to further clarify the extension of the credit fraud, the soft-term letter of credit and the credit fraud should be excluded from the credit fraud in addition, prior to the fraud and relief of the letter of credit, it is to be determined that the jurisdiction of the letter of credit fraud and the application to be applied In accordance with the current legislation in our country, the case of a letter of credit fraud is subject to centralized jurisdiction, usually by the middle-level or higher The court is under the jurisdiction of the court. In terms of the area's jurisdiction, the jurisdiction of the court in tort is the main part, and the recognition pipe is taken. In view of the relevant jurisdiction of the maritime court on the case of the fraud of the letter of credit, the future legislation of our country should clearly define the scope of the maritime jurisdiction and the ordinary jurisdiction, and do well the connection between the maritime court and the suspected criminal case At the same time, a small portion of the case may be delegated to a lesser extent, with a minor impact on the grass-roots approach Under the jurisdiction of the court, in respect of the legal aspects to be applied in the case of the fraud case of the letter of credit, the law of our country first respects the party's self-government, and is selected by the parties. In the absence of the choice of the parties, the practice of international practice or the basis of the most close contact it is determined that the credit fraud exception is the fraud of the letter of credit The following defects are found in the fraud exception of the L/ C as compared with the UCC in China's highest court: (1) the acceptance condition of the letter of credit is too harsh; (2) there is a lack of subjective requirements for the evidence; and (3) the scope of the fraud relief In this respect, we should improve the following aspects: (1) introduce the "injunctions" system of the United States; (2) make clear the parties involved in the fraud dispute of the L/ C; and (3) increase the right to refuse to pay the bank. In addition, in the case of the application of the credit fraud exception principle to the relief of the credit fraud, it should also be noted that the credit fraud exception is the exception. No situation. In this way, we can guarantee the system of fraud exception of L/ C in general. It's just.......... ..@@ At the same time of studying the fraud and relief of the letter of credit, the party of the L/ C should also strengthen its own prevention, pay attention to the credit investigation of the transaction object, participate in the international commercial organization, and be prepared to take a better part in order to prevent the fraud. In the cradle, of course, the international community should strengthen its cooperation for the early development of a unified anti-credit fraud
【学位授予单位】：安徽大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D996;F740.4
【参考文献】
相关期刊论文 前1条
1 史晓丽;信用证欺诈之法律研究[J];中国人民大学学报;1996年04期
相关硕士学位论文 前1条
1 高延文;信用证欺诈之司法救济问题研究[D];西北大学;2005年
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