As a business process of the same type of letter of credit, especially a separate letter of guarantee, the letter of guarantee also has the same or similar functions as the letter of credit. It is precisely because of this function that in recent years, letters of guarantee have been gradually applied in foreign trade and construction business processes.
First of all, the classic case
This paper first synthesizes an example of a people's court.
Basic facts of the case: China Industrial and Commercial Bank Military Management Sub-branch (defendant) applied for the establishment of performance guarantee in favor of Weber Enterprise (appellant) at the request of Guoxin Enterprise (the third party). Performance guarantee statement: our service commitment. If the other party fails to exercise its rights as promised in the main contract,
After receiving the written notice of claim submitted by Weber Enterprise and the following evidence to prove the objective facts of Guo Xin enterprise's breach of contract ("Confirming that Guo Xin enterprise can't perform the contract" submitted by Weber Enterprise), the Bank will undertake joint and several guarantee liabilities to Weber Enterprise within the guarantee amount. 7. The written notice of claim and relevant certification materials must be delivered to the bank within the validity period of this guarantee, otherwise the bank's obligations under this guarantee will be automatically eliminated. "... Later, because the bank refused to file a claim for compensation under the letter of guarantee with the people's court.
The focus of the case objection: whether the written notice of claim in the letter of guarantee is mailed to the bank where the letter of guarantee is established within the validity period.
The enterprise (appellant) thinks that it has publicly submitted the claim documents in the office of Wanweibo Company, the business place of China Industrial and Commercial Bank Military Management Sub-branch, and made a claim. Wan Weibo inspected the claim form in public, clearly put forward the claim standards and documents beyond the description of the letter of guarantee, and determined that the claim would not be tried before such standards and documents were available. Within the next five working days, the Military Management Sub-branch of Industrial and Commercial Bank of China did not pay Weber or send a notice of refusal, but destroyed the letter of guarantee during working hours.
The Military Division of Industrial and Commercial Bank of China (the defendant) replied that Weber Enterprise did not send a written claim notice and relevant supporting materials to the Military Division of Industrial and Commercial Bank of China before the expiry date of the guarantee. According to Article 7 of the performance bond, it is promised that "the written notice of claim and relevant certification materials must be delivered to the bank within the validity period of the bond, otherwise the obligations of the bank under this item will be automatically eliminated."
According to the standard of surface verification of letter of guarantee, if Weber enterprise wants to claim, it should submit two original materials to ICBC Military Management Sub-branch, one is a written claim notice, and the other is relevant certification materials. Enterprises come to ICBC Military Management Sub-branch only for business process consultation, and have not yet submitted the raw materials that meet the guarantee claim. The recorded evidence can only prove that Weber enterprise has been to ICBC Military Management Sub-branch, but it cannot reflect that it has submitted a qualified claim notice and related certification materials to ICBC Military Management Sub-branch.
Main points of the people's court's judgment: Article 90 of the Supreme People's Court's Interpretation on the Application of the Civil Procedure Law of People's Republic of China (PRC) requires that the defendant should directly prove the objective facts on which his claim is clearly based or refute the objective facts on which the other party's claim is based, unless otherwise stipulated by laws and regulations.
Before making a ruling, if the defendant can't provide direct evidence or the direct evidence can't confirm its objective facts, the defendant who undertakes the obligation of cross-examination and confirmation will bear the bad influence. Based on the direct evidence analysis of the current soft service, we believe that Weber Enterprise cannot prove that it submitted a written claim notice and related supporting materials to ICBC Military Management Sub-branch before the due repayment date of the guarantee.
According to the in-depth analysis of all the cases, criminal defense lawyers believe that the appellant has the following difficulties in asking for a guarantee:
1. Guarantee claim steps to solve non-compliance management. The appellant made an immediate claim to the bank staff in public, but did not save the direct evidence necessary for the claim, which eventually led the people's court to feel that there was no direct evidence to prove that the appellant made a claim to the bank within the effective period. Despite the appellant's efforts to gild the lily,
The people's court talked with the bank staff again and took notes. However, the people's court believes that the current direct evidence can only prove that the appellant has sent personnel to the ICBC military sub-division, but failed to submit a written claim notice and related supporting materials that meet the requirements of the letter of guarantee, and important objective facts such as whether the ICBC military sub-division was established and refused. Bo Wei enterprises lack direct evidence to prove this.
2. Failing to claim compensation from the bank, wrongly returning the original letter of guarantee to the applicant. As a dispute case of letter of guarantee claim, the resistance of the beneficiary of letter of guarantee is not only the bank that issued the letter of guarantee, but also the applicant of the letter of guarantee (that is, your dealer/construction unit). After all, the applicant for the letter of guarantee will pay the letter of guarantee according to the bank regulations at the letter of guarantee meeting.
Once the original letter of guarantee is returned to the applicant, it is likely that the applicant will return the original letter of guarantee to the bank for cancellation and get back the guarantee money in order to better consider his own rights and interests. Therefore, under any circumstances, it is not necessary to return the original letter of guarantee to the applicant.
Second, the risk prevention and control measures and solutions in the letter of guarantee claim
Based on long-term experience in establishing letters of guarantee and claiming compensation, criminal defense lawyers feel that the following risk prevention and control measures are likely to exist, and clearly put forward corresponding preventive measures:
The problems in the terms of the letter of guarantee received led the bank to refuse compensation on the grounds that it could not be determined that there was an objective breach of contract. To avoid this situation, we must first determine whether the terms of the letter of guarantee we received meet the requirements of the separate letter of guarantee, that is, according to the requirements of Article 1 of the Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Independent Letter of Guarantee Disputes: a separate letter of guarantee means that a bank or a non-bank financial enterprise, as the initiator, submits a written notice to the beneficiary and is willing to pay the beneficiary a special account or within the maximum amount of the letter of guarantee when the beneficiary requests payment and submits the bill that meets the requirements of the letter of guarantee. The key link is "payment on demand+bill meeting the requirements of letter of guarantee = payment account". In fact, in many cases, the terms of the letter of guarantee do not meet the above key links. 3. If the letter of guarantee promises to make a claim, it must also submit a written notice of claim and proof that the seller has an objective breach of contract. Once a claim is filed, the bank will prove that the seller has breached the contract, or reject the claim with no evidence of breach of contract.
Solution: Establish rules and regulations for full-time personnel to keep the original letter of guarantee, and at the same time, make professional records on the validity period of letter of guarantee, bank and claim form, strengthen cooperation among units, and establish rules and regulations for early warning information.
Guarantee to make a claim within the validity period. Because the validity of the letter of guarantee coincides with the warranty period, construction period and delivery period promised in the contract, when the letter of guarantee is about to expire, it may have been liquidated with the dealer/construction unit or the other party has agreed to make compensation. Why not walk on two legs and then negotiate with the dealer/construction unit?
In addition, it may be more effective to claim compensation from the bank and put pressure on both parties. The claim method proposes to use EMS post within the validity period, the consignee indicates a bank, and the internal parts column of the EMS cover map details the raw materials to be mailed (such as the original letter of guarantee, claim documents, etc.), while retaining the courier number.
Wait for the bank to claim the publicly delivered bills as scheduled, and agree the other party to conduct inspection. If the other party refuses to check or feels that the raw materials are not in compliance, they can choose to report to the next higher bank.
Or, after consulting lawyers to make it clear that the raw materials meet the requirements and the bank fails to notify them in writing, the people's procuratorate will immediately file a lawsuit (in the example in the article, the people's court thinks that one reason for not making a claim within the validity period is that after the bank refuses to pay, the beneficiary of the letter of guarantee will not take further measures against the bank, which is inconsistent with the personal behavior of the general objective business network), and remember that the above behavior must be carried out within the validity period.