論信用證欺詐例外原則的適用
發(fā)布時間：2018-08-18 14:36
【摘要】：信用證是國際貿(mào)易中重要的結(jié)算支付工具,因其設(shè)計精巧而被稱為“天才的創(chuàng)造”,對國際貿(mào)易的快速發(fā)展發(fā)揮了巨大的推動和保障作用。信用證所取得的巨大成功歸于其所特有的獨立性原則,但該原則也為一些不法商人所利用,信用證欺詐案件的增多,嚴(yán)重沖擊了正常的國際貿(mào)易和金融秩序,給國際經(jīng)貿(mào)活動帶來了巨大危害。因此,信用證欺詐例外原則作為信用證基本原則的補充逐漸被大多數(shù)國家所認(rèn)可。我國2006年1月1日開始實施的《最高人民法院關(guān)于審理信用證糾紛案件若干問題的規(guī)定》規(guī)范了信用證欺詐行為,體現(xiàn)了信用證欺詐例外原則的主旨,但是在對第三方欺詐的規(guī)制等方面仍然不夠完善。 本文擬就五個方面試作論述： 第一部分主要以信用證欺詐例外原則產(chǎn)生的基礎(chǔ)為出發(fā)點展開論述,具體分為信用證的概念、特點和性質(zhì)、信用證欺詐及其種類；第二部分主要論述信用證欺詐例外原則的內(nèi)涵及理論基礎(chǔ),重點論述了“獨立抽象原則”是誘發(fā)欺詐的重要原因。論證了欺詐例外原則與獨立抽象原則的關(guān)系,提出欺詐例外原則與獨立抽象原則應(yīng)保持一種適度和平衡的關(guān)系。論述了信用證欺詐例外原則產(chǎn)生的理論基礎(chǔ)(公共秩序保留理論、誠實信用理論、利益均衡理論等)；第三部分闡述了信用證欺詐例外原則的確立與發(fā)展過程,主要從信用證欺詐例外原則的排除出發(fā),從欺詐例外原則的排除情形、欺詐例外原則的例外的必要性上說明了信用證欺詐例外原則的排除；第四部分主要對信用證的司法救濟和防范措施入手,論述了信用證欺詐行為發(fā)生后所能采取的避免或減少損失的措施和方法：禁付令的相關(guān)理論、禁付令之外的其他相似的救濟；同時,通過對買方和開證行對信用證欺詐的防范的分析,列明了買方和開證行對信用證欺詐防范的具體措施；第五部分則是從中國信用證欺詐例外的立法、中國現(xiàn)階段信用證欺詐例外的司法實踐方面講述了我國信用證欺詐例外的立法現(xiàn)狀、現(xiàn)階段立法上、司法實踐上存在的一些問題并進行了分析,提出了建議。 本文旨在通過對信用證基本理論的分析研究的基礎(chǔ)上,對國外已經(jīng)形成信用證欺詐例外制度的理論和司法實踐進行深入地研究,結(jié)合我國的國際貿(mào)易實踐,對我國目前有關(guān)信用證欺詐例外原則的適用的立法和司法實踐進行客觀地分析,并提出自己的觀點和意見。
[Abstract]:Letter of credit is an important settlement and payment tool in international trade. Because of its exquisite design, it is called "genius creation", which plays an important role in promoting and protecting the rapid development of international trade. The great success of letters of credit is attributed to its unique principle of independence, but this principle has also been used by some illegal businessmen. The increase in fraud cases of letters of credit has seriously affected the normal international trade and financial order. It has brought great harm to international economic and trade activities. Therefore, as a supplement to the basic principle of letter of credit, the exception principle of letter of credit fraud has been accepted by most countries. The provisions of the Supreme people's Court on several issues concerning the handling of disputes over letters of credit, which began to be implemented on January 1, 2006, regulate the fraud of letters of credit, and embody the purport of the principle of exception to letter of credit fraud. However, the regulation of third party fraud is still not perfect. This paper intends to discuss five aspects: the first part is mainly based on the principle of fraud exception of letter of credit as the starting point, specifically divided into the concept, characteristics and nature of the letter of credit, letter of credit fraud and its types; The second part mainly discusses the connotation and theoretical basis of the fraud exception principle of letter of credit, and emphasizes that "the principle of independence and abstraction" is the important reason to induce fraud. This paper demonstrates the relationship between the principle of fraud exception and the principle of independent abstraction, and points out that the principle of fraud exception and the principle of independent abstraction should maintain a moderate and balanced relationship. This paper discusses the theoretical basis of the principle of fraud exception of letter of credit (the theory of public order reservation, the theory of honesty and credit, the theory of balance of interests, etc.) the third part expounds the establishment and development process of the principle of fraud exception of letter of credit. Mainly from the exclusion of fraud exception principle of letter of credit, from the exclusion of fraud exception principle, the necessity of exception of fraud exception principle explains the exclusion of fraud exception principle of letter of credit; The fourth part mainly starts with the judicial relief and preventive measures of the letter of credit, and discusses the measures and methods that can be taken to avoid or reduce the loss after the fraud of the letter of credit: the relevant theory of the restraining order. At the same time, through the analysis of the buyer and issuing bank to the letter of credit fraud prevention, listed the buyer and issuing bank to the letter of credit fraud prevention specific measures; The fifth part is from the Chinese letter of credit fraud exception legislation, China at the present stage of fraud exception of the judicial practice of China's letter of credit fraud exception legislative situation, the current legislation, Some problems in judicial practice are analyzed and some suggestions are put forward. Based on the analysis and study of the basic theory of letter of credit, this paper makes a deep research on the theory and judicial practice of the fraud exception system in foreign countries, and combines the international trade practice of our country. This paper makes an objective analysis on the legislation and judicial practice of the application of the principle of fraud exception of letters of credit in China, and puts forward its own views and opinions.
【學(xué)位授予單位】：中國海洋大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2011
【分類號】：D922.28;D996.1;F740.4
本文編號：2189778
[Abstract]:Letter of credit is an important settlement and payment tool in international trade. Because of its exquisite design, it is called "genius creation", which plays an important role in promoting and protecting the rapid development of international trade. The great success of letters of credit is attributed to its unique principle of independence, but this principle has also been used by some illegal businessmen. The increase in fraud cases of letters of credit has seriously affected the normal international trade and financial order. It has brought great harm to international economic and trade activities. Therefore, as a supplement to the basic principle of letter of credit, the exception principle of letter of credit fraud has been accepted by most countries. The provisions of the Supreme people's Court on several issues concerning the handling of disputes over letters of credit, which began to be implemented on January 1, 2006, regulate the fraud of letters of credit, and embody the purport of the principle of exception to letter of credit fraud. However, the regulation of third party fraud is still not perfect. This paper intends to discuss five aspects: the first part is mainly based on the principle of fraud exception of letter of credit as the starting point, specifically divided into the concept, characteristics and nature of the letter of credit, letter of credit fraud and its types; The second part mainly discusses the connotation and theoretical basis of the fraud exception principle of letter of credit, and emphasizes that "the principle of independence and abstraction" is the important reason to induce fraud. This paper demonstrates the relationship between the principle of fraud exception and the principle of independent abstraction, and points out that the principle of fraud exception and the principle of independent abstraction should maintain a moderate and balanced relationship. This paper discusses the theoretical basis of the principle of fraud exception of letter of credit (the theory of public order reservation, the theory of honesty and credit, the theory of balance of interests, etc.) the third part expounds the establishment and development process of the principle of fraud exception of letter of credit. Mainly from the exclusion of fraud exception principle of letter of credit, from the exclusion of fraud exception principle, the necessity of exception of fraud exception principle explains the exclusion of fraud exception principle of letter of credit; The fourth part mainly starts with the judicial relief and preventive measures of the letter of credit, and discusses the measures and methods that can be taken to avoid or reduce the loss after the fraud of the letter of credit: the relevant theory of the restraining order. At the same time, through the analysis of the buyer and issuing bank to the letter of credit fraud prevention, listed the buyer and issuing bank to the letter of credit fraud prevention specific measures; The fifth part is from the Chinese letter of credit fraud exception legislation, China at the present stage of fraud exception of the judicial practice of China's letter of credit fraud exception legislative situation, the current legislation, Some problems in judicial practice are analyzed and some suggestions are put forward. Based on the analysis and study of the basic theory of letter of credit, this paper makes a deep research on the theory and judicial practice of the fraud exception system in foreign countries, and combines the international trade practice of our country. This paper makes an objective analysis on the legislation and judicial practice of the application of the principle of fraud exception of letters of credit in China, and puts forward its own views and opinions.
【學(xué)位授予單位】：中國海洋大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2011
【分類號】：D922.28;D996.1;F740.4
【引證文獻】
相關(guān)碩士學(xué)位論文 前2條
1 何旭;信用證欺詐例外原則的適用研究[D];鄭州大學(xué);2012年
2 鄭傳敬;論我國信用證欺詐的認(rèn)定及其立法規(guī)制[D];安徽大學(xué);2012年
，本文編號：2189778
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