信用证议付性质的重新认识

The New Understanding of the Nature of Negotiation under the Letter of Credit

UCP以及现有学说对议付的定性存在不足之处,给司法实践带来了困惑。议付的本质是受益人将他在信用证下享有的获取款项的权利有偿让与给议付行的行为,而议付的实现要通过议付协议来完成。议付指示是开证行向受益人作出的同意受益人向指定的银行转让收款权的意思表示。议付追索权实质是议付行单方面解除议付协议的合同权利。此外,议付不同于出口押汇、票据权利的转让、可转让信用证以及信用证下的款项让渡。

No matter the provisions of the UCP or the existing theories have some inadequacies in defining the nature of negotiation under the letter of credit,which brings confusion to the judicial practice.The essence of negotiation,whose realization must be reached by a negotiation agreement,is that the beneficiary transfers his right to receive the proceeds under the letter of credit to negotiating bank with compensation.A negotiating instruction is a presentation made by the issuing bank to the beneficiary to agree with beneficiary’s disposition of the right to the proceeds to the nominated bank(s). The essence of negotiation recourse right is the contractual right of negotiating bank to unilaterally terminate a negotiation agreement.It is different with the outward bill, transfer of bill’s right,transferable credit as well as the assignment of proceeds.