信用证非单据性条件研究

On the Non-documentary Conditions in Letters of Credit

信用证本质上是独立于基础合同的单据交易。受益人只有严格按信用证要求提交相符单据,方能要求开证行承付信用证项下款项。如果信用证只是列明了受益人应履行某项条件,但却未要求其提交与之相符的单据,该条件为非单据性条件,开证行应不予理会。此即不予置理规则。早期法院判例所持单据转化规则,即受益人须提交相应单据以证实非单据性条件得以满足的立场并不符合UCP600精神。在开证行与受益人之间,不予置理规则包含四层效力:一是受益人无单据转化义务;二是受益人享有单据转化权利;三是即使受益人未将非单据性条件转化为单据,其所提交之其他单据仍不得与非单据性条件相冲突;四是不予置理规则不可默示排除。在开证行与申请人之间,开证行应对申请人承担未能严格履行申请人授权指示的责任,除非开证行证明其已尽非单据性条件风险的提示义务或受益人已履行非单据性条件。而在申请人与受益人之间,无论信用证下非单据性条件是否与基础合同相符或属于申请人单方新增之条款,不予置理非单据性条件的受益人如果事实上违反了非单据性条件,其在基础合同下承担赔偿申请人相应损失的责任。

Letter of credit is in essence a document transaction independent from the underlying contract.Only complying documents are presented in accordance with the letter of credit,the issuer undertakes a definite undertaking to pay the beneficiary.If a letter of credit contains a condition without stipulating the document to indicate compliance with the condition,the issuer shall disregard it.The position held by courts that the beneficiary undertakes the obligation to present a document indicating compliance with the non-documentary condition is not in consistent with the provision of UCP600.Between the issuer and beneficiary,the disregard rule means that the beneficiary has no obligation,but is entitled,to present a document to indicate compliance with the non-documentary condition;the documents presented by the beneficiary however must not conflict with the disregarded non-documentary condition;the disregard rule in UCP600 may not be derogated impliedly by the letter of credit.However,between the issuer and applicant,the issuer shall undertake the liability for failing to follow the applicant’s instruction on non-documentary condition,unless it has pointed out the risk to the applicant before the issuance of the letter of credit or the beneficiary has abided by the non-documentary condition.Between the applicant and beneficiary,whether the non-documentary condition is provided in the underlying contract,the beneficiary who has failed to abide by the non-documentary condition shall undertake corresponding responsibility to the applicant.