信用证欺诈例外原则下的银行权利义务分析

信用证欺诈例外原则是对信用证抽象独立性原则的排除.在信用证欺诈例外原则适用的情形下,银行往往处于两难的境地,因此厘清其权利义务有重要意义.借鉴并吸收英美国家的先进经验,笔者认为银行有止付权、调查权、受偿权;银行有合理谨慎地审核单据的义务、通知义务和禁令遵从义务.我国应尽快对信用证及其欺诈问题立法,并提高法官对国际惯例的认知水平,为我国银行业的健康发展营造一个良好的法律环境.

Analysis of Rights and Obligations of the Bank under the Principle of L/C Fraud Exception

The principle of L/C fraud exception is an exclusion to the doctrine of L/C autonomy. In cases where the fraud exception is applied, the bank will be in a dilemma; therefore, it is of great importance to make clear the bank's rights and obligations. Enlightened by the established principles adopted by UK and U.S.A, the author believes that the bank is entitled to withhold the payment against the beneficiary, execute investigations, and be reimbursed, while the bank has the obligations to take reasonable care to examine documents, advise the party presenting the documents and obey the injunction. In order to create a favorable legal environment for the healthy development of the banking system in China, national laws that govern the L/C and the L/C fraud should be enacted as soon as possible, and an assured good understanding of the international conventions pertinent to these issues is required among judges.