신용장거래에서 사기예외 원칙의 적용에 관한 연구

Abstract

International trade contracts usually do not understand each other. Buyers worry that the seller will not deliver the goods according to the contract after advance payment, or that the buyer will not pay after delivery. Therefore, banks provide credit to both sides of the trade, and both sides of the trade borrow bank credit to avoid commercial risks and credit risks. The instruments that banks provide here are letters of credit, whose importance is embodied in the principle of ‘independence’ and ‘abstraction’. Independence principle and abstraction principle are the basic principles of L/C. The principle of independence refers to the fact that the L/C transaction and the goods transaction are separated from each other and have an independent status. The principle of abstraction refers to the fact that the letter of credit transaction is a transaction on documents, and the bank determines whether the buyer and seller fulfill their obligations with the documents. If the documents submitted by the seller are in conformity with the terms of the letter of credit, the bank must pay unconditionally. However, the principles of independence and abstraction provide space for L/C fraud. Therefore, the principle of ‘fraud exception’ appeared to solve this problem, which prevented the fraud of L/C to a certain extent. However, each country has different standards in applying the principle of fraud exception. In order to clarify the characteristics and problems of credit fraud identification standards in China and other countries in the world, this study compares the relevant laws and cases of different countries. Through the analysis, this paper puts forward the shortcomings of the standard of fraud identification in Chinese letter of credit, and puts forward some improvement measures. For this reason, this paper analyses Chinese 《Provisions on Disputes in Letter of Credit》, and puts forward the criteria for determining fraud in Letter of Credit and the burden of proof. In the second half of Chapter IV, through case analysis, it can be concluded that Chinese courts can easily apply the principle of ‘fraud exception’ to L/C cases. Easy application of the principle of fraud exception in letters of credit will undermine the principle of independence and abstraction of letters of credit and damage the credit of banks. Appropriate reference to the advanced experience of other countries in the determination of fraud in letters of credit can effectively restrict the discretion of judges, and help to protect the legitimate rights and interests of both sides of trade. Finally, the following suggestions are put forward for the identification standard of credit fraud in China: 1. To subdivide the identification of letter of credit fraud and introduce the concept of ‘substantial fraud’ in the United States into the 《Provisions on Disputes in Letter of Credit》. 2. Referring to British courts, we should expand the scope of the subject of fraud. 3. The burden of proof of the parties should be increased. 4. The purpose of the letter of credit should be fully fulfilled. 5. Strengthen the professional knowledge of L/C. These improvements can protect the interests of the parties involved in L/C transactions with China and prevent L/C fraud. Key words: L/C Fraud; Fraud Exception; Chinese Case