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独立保函的案例分析

作者: admin 来源: 未知 时间: 2017-04-06 阅读: 在线投稿

With the "The Belt and Road" national strategy to push, more and more domestic enterprises to "go out" into the global market. As a guarantee for the realization of the creditor's rights, the guarantee business plays a very important role in protecting the cross-border economic activities of Chinese enterprises. The letter of guarantee has become one of the necessary conditions for Chinese enterprises to participate in overseas transactions and sign the contract. But restricted by the relevant provisions of the guarantee law in China, especially in turn guarantee business, the domestic counter guarantee (BG) whether the independent guarantee has been controversial, the relevant judicial dispute cases showed a growing trend, leading to the domestic counter guarantee (BG) in the global acceptance of decline, thereby affecting the enterprises of our country foreign trade competitiveness. This also makes the domestic banks have to face many uncertainties and potential risks in issuing independent guarantees. How to distinguish the two types of guarantee in the two markets and establish the independence of the independent guarantee has become an urgent problem to be solved.

"Provisions of the Supreme People's Court on Several Issues concerning the trial of independent guarantee dispute cases" (hereinafter referred to as the "independent guarantee judicial interpretation") after the introduction, caused great repercussions in the industry, banking, law, regulations, rules and practice of learning new rules come into fashion. I have long been engaged in the operation and management of bank guarantees, in the process of learning and studying the new regulations, there are some understanding and experience. This paper will combine the practical examples the author encountered in the practical work, the "judicial interpretation" refers to the independent guarantee guarantee the independence of judge, open and effective, guarantee and guarantee termination, the original rules of demonstration, independent guarantee fraud and payment guarantee, deposits and other issues for analysis, in order to provide some reference and inspiration enterprise and industry.

Independent judgment

Case brief

(1) guarantee A: in view of the applicant and the beneficiary signed a XX contract, we will issue a letter of guarantee; if the applicant defaults, I will pay the maximum amount of not more than RMB one million yuan to the beneficiary.

(2) B: bond whereas the applicant signed with XX beneficiary contract, our bank guarantee; I will be in receipt of written notification of the legal representative of the applicant beneficiary statement signed and stamped with the official seal of the breach of contract, payment to the beneficiary principal of one million yuan and interest costs, the realization of creditor's right, damages the application of international payments; guarantee the chamber of Commerce "uniform rules for demand guarantee" (hereinafter referred to as "URDG758").

(3) C: in view of the applicant and the beneficiary signed a XX contract, we opened a letter of guarantee. We shall, upon receipt of a written notice by the legal representative of the beneficiary and the official seal of the applicant, pay the maximum amount of not more than one million yuan to the beneficiary in conformity with the written presentation.

case analysis

The main clauses stipulated in the letter of guarantee A, B and C are more common in practice. Bank as a person, first of all to determine whether the opening of the letter of guarantee is an independent guarantee in the new regulations, or in our security law refers to the guarantee from the property.

According to the independent guarantee "judicial interpretation" of the relevant provisions of the independent guarantee that summed up the "two must" and "three", namely: there will be, there will be the maximum amount of the claim documents; choose indemand, or separate rules, or select independent commitment.

The above three guarantees, guarantee A specified indemand (meet one of three conditions), also indicate the maximum amount of not more than one million yuan (two will meet one of the conditions), but the guarantee claim clause for non documentary terms, according to the load without payment documents, contrary to the principle of independence therefore, the guarantee of A can not be identified as the independent guarantee.

Although the B guarantee shall apply the International Chamber of Commerce (URDG758 meet one of three conditions), according to the payment documents also contained (satisfy one of the two necessary conditions), but the amount of bonds include interest, claims costs, damages and other payments, and the payments cannot be agreed by the guarantor's own record index or to be determined in terms of the guarantee, the maximum amount is not stated in the guarantor under the guarantee shall bear, therefore guarantee B can not be considered as an independent guarantee.

The claim clause of the guarantee C specifies the documents and the maximum amount to be paid to meet the two requirements. Although the provision does not specify guarantee demand or application of the International Chamber of Commerce "uniform rules for demand guarantee" and other independent guarantee transaction model rules, but according to the text content, as long as the beneficiary in compliance with the terms of the guarantee documents, open people should bear the obligation of payment (meet one of three conditions), therefore guarantee C has been identified as the independent guarantee.

Case summary

Independent guarantee of "two must" and "the three choice", is to determine whether the opening of the guarantee is independent of the foundation. Only at the same time to meet the two conditions, and to meet one of the three conditions of the bank guarantee, can be identified as an independent guarantee.

Opening and entry into force

Case brief

Z Bank Guarantee Agency on Monday to open the way to open a letter of guarantee D (advance payment), effective guarantee agreed terms for "from the date of receipt of the advance. The guarantee express company mail on Tuesday, Thursday the beneficiaries to receive open letter of guarantee.

case analysis

(1) the opening of independent guarantee.

In accordance with the provisions of article fourth of the judicial interpretation of the independent guarantee, the time for the opening of the independent guarantee is the time for the issuing of the independent guarantee letter. What is issued, the provisions did not give further explanation. The recent promulgation of the "domestic credit settlement method," the provisions of the tenth: the date of issuance of the issuing bank to open a letter of credit on the date of the letter of credit does not specify the effective date, the date of issuance of the letter of credit is the effective date. The author believes that, in practice, in general, the letter of guarantee in the text of the specified date of departure, therefore, although the above guarantee delivery courier company on Tuesday, but the opening time should still be mastered on Monday.

   
   URDG758则将开立的时间节点定义为“脱离担保人的控制”.何为“脱离控制”?国际商会《见索即付保函统一规则指南》的解释是:纸质保函脱离担保人的控制是当担保人或其代理将保函发送给受益人或其代理,以及当担保人或其代理把保函交由独立承运人(比如邮件服务)而无权索回时(Apaper-based guarantee leavesthe control of the guarantor whenit is dispatched or handed over,whether by the guarantor or itsagent, to the beneficiary or itsagent or to an independent carrier〔e.g. the postal service〕 and theguarantor has no power to recallit)。按照这一标准,尽管本案例例中独立保函D已于周一由Z银行保函部门完成开立程序,并于周二交快递公司邮寄,但在周四受益人收到信开保函前,Z银行保函部门都可以要求快递公司索回,因此,真正意义上的脱离控制,是受益人收到保函的日期,故该保函开立的时间应为周四。实务中,鉴于《独立保函司法解释》并无“脱离担保人的控制”一说,建议开立人从严掌握,以保函文本中载明的开立日期为准,以规避相关风险。
   
(2) the effect of independent guarantee.

In accordance with the provisions of article fourth of the judicial interpretation of the independent guarantee, the independent letter of guarantee shall become effective immediately after the opening, but the independent letter of guarantee shall contain the effective date or event. In this case, the independent guarantee D effective agreement "since the date of the receipt of the advance, but the expression for the event rather than documents, and does not limit the prepaid account receivables is the applicant with Z bank account. Therefore, even if the beneficiary has been in accordance with the basic trading agreement to pay a prepayment, Z bank as a guarantee of D open people, may still be unable to obtain the relevant documents, but also not through their own records to determine the guarantee and the guarantee time has come into effect, easily lead to disputes, it should be further defined in terms of.

Case summary

In the "independent guarantee judicial interpretation" of "a" not to further clarify the situation, proposed open people strict control to guarantee the opening date of the complete attention, and to specify the text of the letter of guarantee Issuance Date shall prevail, confirm the opening time.

As the independent guarantee date stated separately or events, banks should specify a specific date in terms of the guarantee in (such as clear opening date), which can determine the effect of events or documents, or to express themselves through the opening of the records to determine the date of the incident (such as the receipt of the advance the specific amount of the applicant in the open man the account), to avoid disputes.

Original letter of guarantee and guarantee termination

Case brief

Z bank in December 1st to open an independent letter of guarantee E (beneficiary received the original letter of guarantee on the same day), the letter of guarantee, the letter of guarantee in the same year in December 31st failure.

In December 20th of the same year, the Bank of Z received a letter of guarantee from the courier company.

case analysis

According to the independent guarantee "judicial interpretation" provisions of article eleventh, the termination of the rights and obligations of independent guarantee conditions can be divided into five kinds: expired, all the money paid, the amount of deduction to zero, the beneficiary liability documents, agreed to terminate the solution of other circumstances. Article eleventh also provides that the independent guarantee has the rights and obligations of the termination of the case in the preceding paragraph, the beneficiary of its independent letter of guarantee for the protection of the right to claim for payment, the people's court does not support.

So, in this case, the person who received the return of the original letter of independent guarantee, does it mean that the termination of the guarantee responsibility? According to the above provisions, the author believes that the termination of the guarantee letter of independent guarantee can only meet one of the five cases, with the beneficiary is not the original letter of guarantee. Therefore, it is reasonable to believe that in this case, the return of the original letter of guarantee by the beneficiary does not automatically relieve the liability of the person under the guarantee of the opening of the letter of guarantee, because the act does not satisfy any of the five. This view is also in line with the spirit of the URDG758 - it will not be able to terminate the letter of guarantee only if the text of the letter of guarantee is returned to the guarantor without the obligation of the guarantor. In view of this, the Z bank in beneficiary returned to the original guarantee, that is the beneficiary of the termination can not rashly guarantee approval, but should be the beneficiary and the communication, further confirmation.

Case summary

The termination of the rights and obligations of the independent guarantee should be strictly in accordance with the above five cases. The beneficiary has the right of independent guarantee, does not mean that there is a right of claim, the beneficiary does not hold the original of the independent guarantee, nor does it mean that there is no right of claim. In particular, the independent guarantee judicial interpretation of the provisions of the eleventh parties on the termination of the other provisions of the agreement, the person should be more careful operation and judgment, to avoid legal disputes.

Independent guarantee transaction model rules

Case brief

Z bank to open an independent guarantee F, indicating that the applicable URDG758.

case analysis

URDG758 is a set of contractual rules applicable to demand guarantees. It is neither a law nor an international convention, so it applies only when the parties to the guarantee choose to apply.

According to the independent guarantee "judicial interpretation" of the provisions of article fifth, the independent guarantee shall apply URDG758 independent guarantee transaction model rules, or open and the beneficiary in the trial before the end of the debate with quoted, the people's court shall determine the trading rules of demonstration content form part of the terms of the guarantee of independence. Here "independent guarantee judicial interpretation" identified two independent guarantee transaction model rules of situation, one is the guarantee of URDG shall apply, the court of first instance before the end of two is quoted at the same time, further consistent; accordingly confirm the "components" model rules constitute the content of independent guarantee clauses. In other words, as long as the independent guarantee shall apply URDG758 URDG758, the content is automatically added to the independent guarantee clause, that is to say and not say, URDG758 is used to determine the terms of the guarantee, a complying presentation.

Case summary

For the opening of the people, the more suitable for the two cases of URDG758, the former (expressed in the letter of guarantee) is obviously much higher than the latter. Therefore, in the event of a deliberate application of URDG758, it is advisable to specify in the letter of indemnity.

Fraud and payment in case the applicant signed a sales contract with the beneficiary.

To ensure that the applicant to fulfill the contract, the applicant's application, Z bank to open an independent guarantee G.

The beneficiary shall submit to the Bank of Z in accordance with the validity of the independent guarantee letter G that it is in conformity with the G. Z bank has to notify the applicant, the applicant to the beneficiary in the contract of sale is the default on the grounds that the beneficiary fraud, Z bank to the people's court at the domicile of the application of independent guarantee under the G payment.

The people's court to stop payment to the bank to make payment for the Z order.

Z bank raised objections to the materials, the next day to the people's court for reconsideration.

case analysis

For independent guarantee fraud, URDG758 did not have to be detailed in this regard, but to be resolved by the national legislation.

In order to guarantee the independent guarantee to see product attributes on demand, the Supreme People's court in the "judicial interpretation" of the independent guarantee can apply for payment fraud case set up relatively strict provisions, including article twelfth of fraud provisions of the five cases, thirteenth were prescribed for the suspension of payment process, the provisions of article fourteenth termination the terms of payment, the payment procedure stipulated in article sixteenth, the provisions of article seventeenth of the review procedures, the provisions of article twenty-first of the jurisdiction and so on. In particular, the independent guarantee "judicial interpretation" of article twentieth of the criminal procedure law "beyond reasonable doubt" that strict payment only in evidence really, fully, in order to open the termination decision requested payment of independent guarantee funds under the court to pay termination to avoid abuse.

In this case, applicants stopped on the grounds that exist in the contract for the sale of the beneficiary under the default cases, and concluded that the beneficiary fraud. But according to the "independent guarantee judicial interpretation" of article third on twelve "only in the judgment of the court or the arbitral award that no payment or transaction based debt liability", can be identified as fraud, not only by the applicant itself that "provisions of fraud", and the second paragraph of article fourteenth on the "payment to the beneficiary to the applicant the underlying transaction default on the payment request, the provisions of the people's court shall not support", the court should not make independent guarantee under G materials. Z bank to maintain its reputation as materials for reconsideration is necessary.

Case summary

The independent guarantee "judicial interpretation" of twelfth to twenty-second, and that the strict definition of the standard specification of the fraud case, payment procedures, clear the jurisdiction and foreign guarantee legal application, can effectively prevent the abuse of the payment procedure, maintain open people's credibility, to safeguard the healthy development of the independent guarantee business.

The bank is open people, should be more cautious in practice to deal with fraud and payment under the guarantee of independence. In the formulation of the terms of guarantee and dealing with disputes, we should adhere to the principle of independence of the letter of guarantee, as far as possible to avoid the involvement of the basic transaction disputes. At the same time, once independent under the guarantee of payment by the court ruled that the case, a person in respect of the ruling, according to the actual situation, to take further measures in strict accordance with the "judicial interpretation" of the provisions of the independent guarantee program.

Guarantee bond

Case brief

Z bank should apply for the applicant to open an independent letter of guarantee H, the amount of one million yuan guarantee.

The applicant to provide full security in the form of counter guarantees, in the opening of the bank account in Z (account 1234) deposit of RMB one million yuan.

Letter of guarantee opened on the same day, Z bank charge security fee, the above ten thousand yuan account security fee.

Since then, due to the reasons for the applicant, the people's court to deduct the balance of the account (during this period, the applicant for other transactions daily settlement, the account in and out of a sum of money). Z bank to the account of the existing independent guarantee H margin on grounds of objection to the people's court.

case analysis

The judicial interpretation of the independent guarantee twenty-fourth confirms the nature of the pledge of money. According to this provision, the people's court for household management and transfer open who holds the independent guarantee to open margin, can be frozen, but shall not deduct or independent guarantee to open to open the bond guarantee gold enjoy priority.

In this case, the letter of guarantee under the independent guarantee H deposit has been paid to the Z bank account, but the account is also used for the daily settlement of other transactions of the applicant, special management doubt. The court may determine that the amount of money in the margin account has lost the function of opening the deposit, thereby deducting the amount of the account.

Case summary

The guarantor enjoys the premise of priority, must meet to ensure Sargent stabilization and open the actual possession of two cases. Therefore, in the practical operation of the opening, the applicant shall reach a written pledge of the bond with the applicant, the effective possession of a security deposit. More importantly, the guarantor shall guarantee deposit account management, the establishment of independent guarantee and the margin of the one-to-one relationship (for days after the proof), shall not be used for more daily settlement with the non deposit account, in order to avoid the day after payment because of unknown nature, not the exercise of the applicant issued the guarantee deposit priority the right to suffer unnecessary losses.

Judicial interpretation of the independent guarantee has been officially implemented in December 1, 2016. This is a major event in the guarantee circle. Both enterprises and banks, or the judiciary, should be in the "law on the basis of independence and documentary requirements adhere to the independent guarantee, and to guarantee the independence of independent judgment, documents audit, fraud identification, payment procedure, guarantee the implementation of the paid special attention. Only all strictly abide by the independent guarantee of the provisions of "judicial interpretation" and the requirements of the financial innovation products of independent guarantee, in order to get a healthy development in our country, but also to the market in two to play a more important role in "escort".

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