論我國信用證欺詐的認定及其立法規(guī)制
發(fā)布時間：2019-03-28 09:07
【摘要】：信用證是國際貿(mào)易結算中最重要的支付方式。①其以銀行信用證替代商業(yè)信用,解決了國際貿(mào)易雙方互不信任的難題,增強了買賣雙方的信心,得到了貿(mào)易雙方的普遍認可。抽象獨立性是信用證的本質(zhì)特征,只要受益人提交的單據(jù)與信用證表面相符,銀行即應予以承兌或付款。這給實踐中的不法分子留下了可趁之機,他們往往利用信用證運行機制進行欺詐,騙取銀行的款項。國際商會考慮到信用證欺詐的特殊性,并未對此類問題進行規(guī)定,而是將其留給各國國內(nèi)法自行解決。 對于何謂信用證,我國《國內(nèi)信用證結算辦法》與《跟單信用證統(tǒng)一慣例》(簡稱UCP600)及《美國統(tǒng)一商法典》(簡稱UCC)有著不同的規(guī)定,與后兩者相比較,我國信用證定義較為狹窄,隨著實踐的不斷發(fā)展,該定義很難滿足于社會的需求,因此,我國立法應借鑒UCP600和UCC的規(guī)定,在信用證概念中加入“承兌”和“書面”的描述。我國對信用證欺詐規(guī)定最為完備的法律文件當屬最高人民法院2005年發(fā)布的《關于審理信用證糾紛案件若干問題的規(guī)定》(以下簡稱《規(guī)定》),該《規(guī)定》以列舉的方式說明了信用證欺詐的情形。對于該規(guī)定的情形,理論界有著不同的看法。特別是在信用證欺詐主體的認定上,學者之間爭議較大。經(jīng)過綜合分析,信用證欺詐應包括受益人單獨實施的欺詐,受益人與第三人串通實施的欺詐,受益人與申請人合謀實施的欺詐。同時,在信用證欺詐的內(nèi)容方面,應包括“單據(jù)欺詐”和“交易中的欺詐”兩種情形。信用證欺詐的標準應為“實質(zhì)性欺詐”。此外,為了更加明確信用證欺詐的外延,應將軟條款信用證和信用證詐騙排除在信用證欺詐之外。 在對信用證欺詐救濟前,應確定信用證欺詐的管轄法院和所應適用的法律。根據(jù)我國目前立法,信用證欺詐案件采取集中管轄,一般由中級以上法院管轄。在地域管轄方面,以侵權行為地法院管轄為主,兼采承認管轄原則。鑒于海事法院對信用證欺詐案件的相關管轄權,我國未來立法應明確界定海事管轄與普通管轄的范圍,做好海事法院對涉嫌刑事案件的接納工作。同時可視情況下放一部分標的額較小、影響輕微的案件由基層法院管轄。在信用證欺詐案件所應適用的法律方面,我國法律首先尊重當事人的意思自治,由當事人自行選擇,在當事人沒有選擇的情況下,適用國際慣例或根據(jù)最密切聯(lián)系地原則確定。信用證欺詐例外是對信用證欺詐的救濟。我國最高院的《規(guī)定》與UCC相比,在信用證欺詐例外規(guī)定方面存在以下不足之處：(1)信用證止付申請受理條件過于苛刻；(2)缺乏對證據(jù)的主觀要求；(3)欺詐救濟的程序混亂。對此,我國《規(guī)定》應從以下方面進行完善：(1)引入美國的“禁令”制度；(2)明晰信用證欺詐糾紛的當事人；(3)增加對銀行拒付權的規(guī)定。此外,在適用信用證欺詐例外原則對信用證欺詐進行救濟的同時,還應注意信用證欺詐例外豁免情形。這樣才能從總體上保證我國信用證欺詐例外制度的公正。 防范永遠大于救濟。在研究信用證欺詐及其救濟的同時,信用證當事人也應加強自身防范,注重對交易對象的資信調(diào)查,參加國際性商事組織,未雨綢繆,才能將欺詐扼殺在搖籃中。當然,國際社會也應加強合作,爭取早日制定反信用證欺詐的統(tǒng)一性國際規(guī)則。
[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
【學位授予單位】：安徽大學
【學位級別】：碩士
【學位授予年份】：2012
【分類號】：D996;F740.4
本文編號：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
【學位授予單位】：安徽大學
【學位級別】：碩士
【學位授予年份】：2012
【分類號】：D996;F740.4
【參考文獻】
相關期刊論文 前1條
1 史曉麗;信用證欺詐之法律研究[J];中國人民大學學報;1996年04期
相關碩士學位論文 前1條
1 高延文;信用證欺詐之司法救濟問題研究[D];西北大學;2005年
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