信用證付款終局性及其例外——基於信用證根本屬性的視角

Finality of Payment under Letters of Credit and Its Exceptions: Perspective of the Hallmark of Letters of Credit

信用證下開證人與保兌人對受益人承擔了相符交單下的確定付款義務。此所謂確定，不僅僅是強調開證人或保兌人的付款條件必須清楚明晰，而且要求開證人或保兌人據此作出的付款是終局的。開證人與保兌人付款終局性本質上是信用證付款確定性價值追求的體現，是信用證融資功能的最終要求，也是信用證風險分配機制的必然結果。故此，信用證付款終局性構成了信用證的根本屬性，開證人與保兌人在開立或保兌信用證時不得擅自改變信用證付款終局性，否則不構成真正意義上的信用證或信用證保兌。但在開證人或保兌人超額支付款項、受益人信用證欺詐等情形下，開證人或保兌人不受信用證付款終局性拘束而有權向受益人追索，是為例外。此例外並不是對信用證付款終局性的“背叛”，而是其內涵的有益補充。信用證付款終局性及其例外無論是對法院審判實踐還是對銀行實務操作都具有重要指導意義。

Under the letter of credit, the issuer or confirmer has undertaken a definite obligation to pay the beneficiary when complying documents are presented. Here“definite”indicates not only that the payment terms and conditions must be clear and specific, but also that the issuer and confirmer’s payment is final. The finality of payment is derived from the certainty of payment pursued by the letter of credit, and is necessitated for the realization of financing function of the letter of credit. What’s more, it is the logical outcome of the risk allocation mechanism of the letter of credit. Finality of payment is the hallmark of the letter of credit and the issuer or confirmer may not reserve its right to recourse whenever it issues or confirms the letter of credit. Otherwise such letter of credit or confirmation with right to recourse will not constitute a real letter of credit or confirmation under the law of letter of credit. However, under the exceptional circumstances, like when the issuer or confirmer has paid the beneficiary in excess of the amount due by mistake or the beneficiary has committed a letter of credit fraud, the finality of payment shall not be an obstacle for the issuer or confirmer to claim refund against the beneficiary. However the exceptions shall not be considered as a deviation from, but as a supplement to, the finality of letter of credit payment. The finality of payment under letter of credit and its exceptions have great significance on courts’adjudications and banks’operations.