论我国见索即付保函法律制度的构建

Concentration of the Legal System of the On-Demand Guarantees

见索即付保函产生于二战以后蓬勃发展的国际商业实践。突破了传统保函的从属性,具备独立性与单据化特征使受益人得到迅速、便捷的资金补偿,从而被商业社会普遍接受。但由于各国交易惯例的差异和当事人理解上的偏差,相关纠纷时有发生。我国商业实践早在20世纪80年代就开始运用,但现有立法却仍没有明确其合法地位,也没有专门而系统的操作规范,司法实践亦对涉外领域和国内领域的保函效力予以区别对待。基于商业实践和保护相关当事人权益的需要,构建我国见索即付保函法律制度势在必行。

The on-demand guarantees were produced in international business practices after the Second World War. Break the property of traditional guarantees, the on-demand guarantees have the features of independence and documents, which will enable tbe beneficiary to get financial compensation rapidly and conveniently .Thus generally accepted by the business community. However, due to the deviation of the differences between the parties, disputes arise a lot. As early as the 1980s, the use of on-demand guarantees in China＇s business has begun, but the existing legislation does not explicitly take its rightful place, and there is no specific operation of the system specification. What is more is the judicial practice also distinguishes between the effect of foreign areas and the domestic sphere for on-demand guarantees. Based on the needs of business practices and to protect the relevant parties＇ interests, to build China＇s demand guarantee legal system is imperative.