论信用证欺诈例外原则

论文总字数：15852字

目 录

一 信用证欺诈例外原则及其适用前提························4

（一）信用证欺诈例外原则界定················································4

（二）欺诈例外原则与独立原则················································4

（三）欺诈例外原则适用前提··················································4

二 国内外立法与实践·······································5

（一）国外立法与实践························································5

1 美国的立法与实践························································5

2 英国的立法与实践························································5

3 德国的立法与实践························································6

4 国际商会的相关规定 ·····················································6

（二）我国立法与实践························································7

三 我国立法、司法之不足··································8

（一）我国相关立法的缺陷····················································8

1 立法尚不完善····························································8

2 信用证欺诈认定标准不明确················································8

3 尚未引入止付令制度······················································9

4 尚未授予银行拒付权······················································9

（二）司法实践中存在的问题··················································9

1 不够充分尊重善意第三人的正当权益········································9

2 忽视了开证行的抗辩权····················································10

3 对欺诈举证标准过低······················································10

四 立法与司法建议·········································11

（一）立法建议······························································11

1 引入“实质性欺诈”概念··················································11

2 建立止付令制度··························································11

3 在规定时间内赋予银行拒付权··············································11

（二）司法建议······························································12

1 限定申请止付令的举证标准，并且提供相应的担保····························12

2 加强保护善意第三人之正当权益············································12

3 提升法官审判信用证欺诈案例的业务能力····································12

4 建立有效司法监督体系····················································12

5 加强法院与银行间的沟通与合作············································13

五 结语···················································13

参考文献··················································13

致谢······················································15

论信用证欺诈例外原则

张晶红

，China

Abstract:As a way of settlement,the letter of credit is adapted widely at international economic and trade.The system of letter of credit is based on the principle of independence,so that it can exist and develop well.However,this principle also provide beneficiary convinient to fraud.Many countries have built the lettet of credit fraud exceptional principle through kinds of cases to stop the fraud.Chinese legislation is not complete,we haven’t built the system of stop-payment order and the regulation of banks’ right to refuse to pay is unresonable.There are many problems exsiting in judiciary,such as it isn’t clear about the fraud of letter of credit,and pay little of attention to the legal right of bona fide third party and so on.As to uncomplete legal system of our country,combine developed legislation of foreign countries,we should build the system of stop-payment order,give bank the right to refuse to pay in a resonable time,and adapt the abstract of material fraud and so on.Regulate the limition of proving that proposer applys to count,strengthen the protection of legal right of bona fide third party,and build the system of judicial supervision etc.

Key words:material fraud;the principle of independences;fraud exceptional principle of letter of credit

一、信用证欺诈例外原则及其适用前提

（一）信用证欺诈例外原则界定

信用证在商业经济贸易中，是以银行之信用为付款保证的支付手段，其在世界范围内享有“国际商业之生命线”的盛誉。众所周知，基于信用证项下之相关单据与买卖合同分轨而行，后者发生纠纷亦与信用证交易相互分离，因而，独立之原则成为信用证制度运行的根本保障。然而，该原则在实践中存在一定的缺陷，如若受益人进行信用证欺诈，银行只审单不审货仍进行付款，将会对开证申请人造成难以弥补的损失。为弥补这一缺陷，信用证欺诈例外原则在诸多国家立法中应运而生——在信用证存在欺诈的情况下，允许独立原则存有例外。具体表现为，法院可以在信用证存在欺诈情形时，通过颁发止付令来禁止银行的付款或承兑行为，抑或由银行自行决定是否付款或承兑。

（二）欺诈例外原则与独立原则

信用证独立性原则是信用证制度的基石，基于该原则，银行负责审查单据表面的正确性，即“单证相符，单单相符”，无论基础合同履行与否，银行都要向受益人承担付款责任。该原则具体体现在UCP600第4条（a）项、第5条和第14条。

实务中，首先，银行并没有足够的精力和能力对单证文件进行认证，它仅关心单据表面是否相符，独立于基础合同。其次，信用证的本质是利用银行信用以保证付款的支付方式，如果银行可以基于基础合同关系对受益人进行抗辩，那么商业信用证转变为银行信用证则丧失了意义。因此，信用证制度能够正常运行是以信用证独立原则为基础和前提的。

信用证欺诈例外原则与独立原则之间相辅相成、密不可分。纵然欺诈例外原则在一定程度上对独立原则造成冲击，但同时在信用证制度轨制中，是对独立性原则在一定程度上的弥补，是对其进行有益的补充，二者的本质目的，即在确保交易过程的安全和双方当事人的利益方面是一致的。

（三）欺诈例外原则适用前提

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