The Independence of Demand Guarantees, Performance Bonds and Standby Letters of Credit

需求擔保的獨立性:履約保證與擔保信用狀

擔保信用狀與獨立保證共享同一個法律特質,亦即其等在本質上是獨立的,而此亦是該等文件的特徵。本文所稱保證函指涉的是獨立保證與擔保信用狀,同時跟單信用狀指涉的是商業信用狀或是銀行信用狀。保證函可以使受益人(在國際貿易習慣上,為賣方-出口商)從值得信賴的给付者得到立即及確定的付款,受款者對任何可能引發爭議的金錢都能取得款項。為達到此目的,保證函必須發揮起風險分配的功能。他們迅速地改變訴訟負擔,因為受益人藉由出示符合交易的文件即考快速地得到資金,而且亦可以使申請人(在國際貿易上,為買方-進口商)開啟訴訟的程序,倘若其希望收回先前所给付的款項。保證函可以在國際交易上改變訴訟的進行地,如此申請人可以在其國家對受益人進行訴訟行為。這些功能可從保證函的獨立原則推導出。此原則所指涉的是保證函的付款責任是不同的且獨立契約。而發行信用狀的銀行所考量的是收購文件即使是單純的要求,是否符合保證的條款與條件,而此考量並非是契約中所引發的爭議。但是獨立原則並不是指發行信用狀的銀行在所有的情況下都要允諾受款者的付款要求。在受益人有明顯詐欺時(或是權利濫用時),銀行有權且有義務拒絕给付。這不僅是為公益理由遏止詐欺,亦在鼓勵保證函的使用,同時受益人的詐欺行為並不在申請人在使用保證函時所應承受的風險。

Standby credits and independent guarantees both share the same legal characteristics, e.g., they are independent in nature and of a documentary character. Therefore, in this thesis the term documentary guarantee" is used to denote both an independent guarantee and standby credit, while the term documentary credit" denotes a commercial letter of credit or bankers' commercial credit.Documentary guarantees enable their beneficiary to have prompt and certain payment from a reliable paymaster, pending resolution of any underlying dispute with money in his pocket (the pay first, argue later" function). In doing so, they exercise a risk allocation function. They shift the burden of litigation in that the beneficiary can rapidly have funds in hand by way of presenting conforming documents, and it is the account party that has to start proceedings if he wishes to reclaim that money. They also shift the forum of litigation in an international transaction in that the account party has to approach the beneficiary in his country to start an action there.All of these functions are predicated on the principle of independence of documentary guarantees. This principle means that the payment undertaking contained in a documentary guarantee is separate from, and in the ordinary way independent of, the underlying contract giving birth to it. What the issuer is concerned with is whether the tendered documents, or even a simple demand, comply with the terms and conditions of the undertaking, rather than with the disputes arising from the underlying contract. But the principle of independence does not mean that the issuer is in all cases required to honour a demand for payment. In a clear case of the beneficiary's fraud (or abuse of right), the issuer is entitled, and is obliged, to refuse to pay, not only because there is as much public interest in discouraging fraud as in encouraging the use of documentary guarantees, but also because the beneficiary's fraud is not within the risk that has been distributed to the account party by the use of documentary guarantees.