论我国独立保函制度之完善
发布时间：2018-10-21 17:57
【摘要】：独立保函,是在近二三十年的国际经济活动中发展形成的一种新型信用担保方式,因其比从属性担保有着更强大的保障功能,从而在国际贸易中得到了广泛的实践和应用。为了应对担保法领域的最新变化,在2013年年底,最高院发布了《关于审理独立保函纠纷案件若干问题的规定(征求意见稿)》,发出了我国担保法领域改革的明确信号。由于我国目前还没有对独立保函问题做出明确的法律规定,本文将在学习借鉴相关国际惯例、国际公约及其他国家国内法的基础上,结合我国的立法、司法现状,提出在我国构建独立保函制度的建议。因此,此问题的研究是具有十分重要的理论意义和实践意义。本文由四部分组成:第一章,独立保函概述。这部分主要对独立保函进行基础性介绍,包括独立保函的兴起与实践,独立保函的概念、种类、法律特征和法律关系等,并把它与其他担保方式进行比较。第二章,独立保函的国际(境外)实践。这部分是对与独立保函相关的国际惯例、国际公约以及外国国内法渊源、港澳地区实践的介绍,并在此基础上与我国的相关实践进行比较性研究,找到我国独立保函发展可借鉴的方向。第三章,独立保函在我国的现状。这部分是从立法现状和司法现状两部分对独立保函在我国的运用进行分析,并在现状之中找到我国当下在运用独立保函时存在的问题。第四章,独立保函在我国的构建和完善。这部分主要论述我国在法律层面承认独立保函的法律效力的法理学以及经济学依据,并对独立保函规则的具体构建提出立法建议和司法建议,为独立保函的构建勾勒出基本的蓝图。
[Abstract]:Independent guarantee is a new type of credit guarantee developed in the past twenty or thirty years of international economic activities. Because of its stronger function than subordinate guarantee, it has been widely used in international trade. In order to cope with the latest changes in the field of guaranty law, at the end of 2013, the Supreme Court issued the regulations (draft for opinions) concerning the trial of independent guarantee disputes, which sent a clear signal of the reform of the field of guaranty law in China. As China has not yet made clear legal provisions on the issue of independent guarantees, this paper will learn from relevant international practices, international conventions and other countries' domestic laws, and combine our legislation and judicial status. This paper puts forward the suggestion of constructing the independent guarantee system in our country. Therefore, the study of this problem is of great theoretical and practical significance. This paper consists of four parts: the first chapter, an overview of the independent guarantee. This part mainly introduces the basis of independent guarantee, including the emergence and practice of independent guarantee, the concept, category, legal characteristics and legal relationship of independent guarantee, and compares it with other forms of guarantee. Chapter two, International (overseas) practice of Independent guarantee. This part is an introduction to the international practice, international conventions and the sources of foreign domestic law, and the practice of Hong Kong and Macao, which is related to the independent guarantee, and on the basis of this, it makes a comparative study with the relevant practice of our country. Find out the direction that our country can use for reference in the development of independent guarantee. Chapter three, the present situation of the independent guarantee in our country. This part analyzes the application of the independent guarantee in our country from the two parts of the legislation and the judicial status, and finds out the problems existing in the application of the independent guarantee in our country. Chapter four, the construction and perfection of independent guarantee in our country. This part mainly discusses the jurisprudence and economic basis of recognizing the legal effect of independent guarantee in our country at the legal level, and puts forward legislative and judicial suggestions on the concrete construction of the rules of independent guarantee. Outline the basic blueprint for the construction of the independent guarantee.
【学位授予单位】：广东外语外贸大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923;D996.1
本文编号：2285903
[Abstract]:Independent guarantee is a new type of credit guarantee developed in the past twenty or thirty years of international economic activities. Because of its stronger function than subordinate guarantee, it has been widely used in international trade. In order to cope with the latest changes in the field of guaranty law, at the end of 2013, the Supreme Court issued the regulations (draft for opinions) concerning the trial of independent guarantee disputes, which sent a clear signal of the reform of the field of guaranty law in China. As China has not yet made clear legal provisions on the issue of independent guarantees, this paper will learn from relevant international practices, international conventions and other countries' domestic laws, and combine our legislation and judicial status. This paper puts forward the suggestion of constructing the independent guarantee system in our country. Therefore, the study of this problem is of great theoretical and practical significance. This paper consists of four parts: the first chapter, an overview of the independent guarantee. This part mainly introduces the basis of independent guarantee, including the emergence and practice of independent guarantee, the concept, category, legal characteristics and legal relationship of independent guarantee, and compares it with other forms of guarantee. Chapter two, International (overseas) practice of Independent guarantee. This part is an introduction to the international practice, international conventions and the sources of foreign domestic law, and the practice of Hong Kong and Macao, which is related to the independent guarantee, and on the basis of this, it makes a comparative study with the relevant practice of our country. Find out the direction that our country can use for reference in the development of independent guarantee. Chapter three, the present situation of the independent guarantee in our country. This part analyzes the application of the independent guarantee in our country from the two parts of the legislation and the judicial status, and finds out the problems existing in the application of the independent guarantee in our country. Chapter four, the construction and perfection of independent guarantee in our country. This part mainly discusses the jurisprudence and economic basis of recognizing the legal effect of independent guarantee in our country at the legal level, and puts forward legislative and judicial suggestions on the concrete construction of the rules of independent guarantee. Outline the basic blueprint for the construction of the independent guarantee.
【学位授予单位】：广东外语外贸大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923;D996.1
【参考文献】
相关期刊论文 前1条
1 李君莉;张卫新;伍静;;独立保函若干法律问题分析[J];现代商业;2008年17期
，本文编号：2285903
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