3454.C UCP600租船提单中开证行的责任及风险防范 英语文献及翻译

1、学院2010届毕业生毕业论文英 文 文 献院(系)别 经济系 专 业 国际经济与贸易 班 级 国专 学 号 姓 名 指导教师 二一年六月ucp600 in issuing the charter party b/l are standardizeducp600 to the issuing bank, the applicant shall be defined for or on behalf of his request to open the l/c. meanwhile, if the issuing bank, international trade settlement in it

2、s business includes negotiation behavior, the issuing bank issuing bank is in complying presentation, the payment shall be awarded on or before the banking day to advance or agree to payment in advance. the issuing bank issuing and perform such behavior of ucp600, in article 7 is clear and precise w

3、ith lists of the rules. article 7 a paragraph of the issuing bank payment of duty, namely, five species as prescribed by the documents submitted to the nominated bank and the issuing bank or presentation, the issuing bank must press the l/c shall be applicable to the situation (a) credit verificatio

4、n by the issuing bank by sight payment, by deferred payment or acceptance, (2) by the nominated bank credit payable at sight but the payment. (3) by the nominated bank credit deferred payment but its not promise deferred payment, or has promised a deferred payment, but not on the expiry date payment

5、. l (4) by the nominated bank acceptance, but its not accepted by the drawee drawn for acceptance or the draft, though, but not on the expiry date payment. l (5) by the nominated bank negotiation but its not negotiating. although the terms, but only five details including bank must pay the situation

6、 is nine and a paragraph of article 7 and no supplementary terms, out, issuing bank payment is strictly defined. article 7 a b submission for the issuing bank is the starting time of payment of the documents, namely the issuing bank from the l/c is irrevocably undertake honour responsibility, that i

7、s to say, the issuing bank from the l/c will inevitably suffer credit terms, as long as the international conventions to conform documents to the issuing bank or the issuing bank designated bank and the issuing bank payment, the payment has been formed. article 7 the issuing of b walk through the pr

8、ovisong phase can be dim, from the time off to the banks responsibility. but if from the time of the logical sequence, article 7 of the issuing bank under the regulations should be on duty starting a paragraph of article 7 of the front, because only to determine the issuing bank, to the starting tim

9、e of responsibility about the issuing bank must honour of responsibility. article 7, paragraph c stipulates the nominated bank honour or negotiate presentation and supporting documents to the issuing bank, the issuing bank is liable for payment of the nominated bank. for acceptance or payment under

10、the credit conform to the amount of payment shall be in single date, no matter whether the banks designated to handle in advance or purchase before maturity, the issuing bank designated banks pay responsibility independent of the issuing bank to beneficiarys responsibility. article 7, paragraph c ac

11、cording to provisions of ucp600 can see, in determining the issuing bank obligated to pay has designated bank payment at the same time, protect the designated sight payment, designated forward, the designated payment drafts and designated confirming bank interest. 2 obviously ucp600 folio bank credi

12、t settlement of responsibility applies to all aspects, including applicable ucp600 article 22 under the condition of the charter party b/l and the issuing bank obligations and responsibilities.the issuing of the charter party b/l risksucp600 article 22 b, paragraph 1, banks will not audit chartering

13、 contract, even if a credit requires submit chartering contract. this clauseregulation is increased risk of issuing bank. because in the charter party b/l in terms of into the existing maritime law, namely the shipowners to navigationtimes of chartering ship to the lessee, the lessee shall be requir

14、ed and the issue of bills of lading, or the lessee will require to sign on behalf of the mastersend the bill of lading. under the charter of the bill of lading on the hand just as proof of the lessor, the lessee receive the goods between the right and the lessorthe obligations in accordance with the

15、 provisions of the charter, the bill of lading no longer proof of the contract of carriage of goods by sea. but the bill of lading, happenthe bill of lading, holding the third outside the lessor and the rights and obligations in accordance with relevant records, bill of lading and bill of lading to

16、the international conventionand the law of adjustment. in this case, the lessor in order to safeguard their interests, and avoid the bill of lading for rent at the time of transfer occursship contract obligations and responsibilities, often in the bill of lading contains chartering contract certain

17、content, called into clause. 3 the result is that the charter of the shipper, consignee and the issuing bank, in such ignorance and increases the risk of settlement by other circumstances passively chartering contract constraint. issuing walk in the charter party b/l and prevent risks borne by the a

18、pplicant and the l/c beneficiary in the international sale of goods in the different choices of trade terms.(a) the issuing of the applicant and the beneficiary, choose the fob term of credit risk control principle, according to open l/c, has the international business contract independently. l/c in

19、 law applicable international business contract, and ucp600 applicable international trade, the international conventions and treaties and case of domestic statute. but undeniable, credit and international business contract although independent of each other, but interrelated. l/c with international

20、 business contract does not conform the contract for the sale of the l/c amendment, refusal, led directly to the buyers and sellers of the responsibility of breach of contract. if the applicant and the beneficiary in the international sale of goods, select the fob term of the contract by the interna

21、tional sale of goods, and the buyers charter is usually the l/c and the applicant, visible, the buyers credit card payment risk done outside. charter party b/l on fob under the condition of the international sale of goods, the buyer the contract with the shipping goods, rent ship the lessor and the

22、international sale of goods between the buyer of the contract according to the contract, but is chartering ship the lessor and the international sale of goods in the contract between the seller ships the lessor according to the bill of lading is issued. the charter is the contract party autonomy, an

23、d the results by international marine bill of lading relationship treaties and law of the provisions of the law. forcibly in the charter of the bill of lading and conflict, on the surface, in the international sale of goods in the contract without knowing the risk is bigger, but in credit settlement

24、, the issuing bank if the documents and the l/c is stipulated documents, according to the provisions of article 7 ucp600, issuing bank for payment to the sellers final. obviously, in the fob charter party b/l, under the situation of the issuing bank to open the l/c should be cautious when the solven

25、cy, performance evaluation, credit and formed by the social reputation, reduce the risk of the investment required to open the l/c, in the issuing bank account opened in the basic account for payment by l/c are sufficient funds or to provide corresponding guarantees.(2) the issuing of the applicant

26、and the beneficiary, choose the cif or cfr risk controlthe applicant and the beneficiary cfr term cif and choice by the international sale of goods, the seller ships the contract signed with the lessor chartering contract. in the charter of the lessor, ships usually captain or his agent shall not re

27、strict the bill of lading issued by the charter. opening in the cif or cfr charter party b/l circumstance, besides considering the international sale of goods in the contract, sellers reputation in the bill of lading will chartering ship lessor credit standing. because of the high value of a credit

28、in the shipping company has given its agent captain issue bills of lading rights, strict demands on the captain issued its agents shall sign the bill of lading and poured through bill of lading, consciously abide by rules of morality industry. in the charter of the freight bill of lading provisions

29、rent and inconsistent when also can produce dispute, at present there is no unified mechanism, in most cases is lessor and lessee ship ship, if cannot reach a agreement, will inevitably affect carriage of the goods and bank accounts. the maritime law regulation: the bill of lading for where accordin

30、g to a voyage charter party bill of lading issued by shipping goods, the holder of the lessee, the carrier is the holder of the bill of lading with the rights and obligations of the bill of lading. but, for stated in the bill of lading for chartering contract clauses of the voyage charter, the terms

31、 of the contract. from the legal value orientation, see, this is to strengthen the charterer, against the charterer and bill of lading holder, because the benefit balance between the seller and the cfr cif, namely the charterer in order to make the quality problem of the shipowner has drawn the carg

32、o ship, often agree to clean bill of lading of relief and reduce the lessor responsibility requirements, infringe upon the unsuspecting buyer interests cif and cfr. combined with the above situation, walk when issuing the document examination should focus on cif and cfr charter party b/l and evaluat

33、e the international sale of goods in the contract the seller ships the lessor in recent years, with the credit standing.(3) an issuing bank should review charter party b/l take charteringwith credit and the content of ucp500 under article 25, ucp600 article 22 b, paragraph 1, bank will still not aud

34、it chartering contract, even if a credit requires submit chartering contract. this clause is no changes over the years, the reason is the issuing bank is not legal institution of financial institutions, does not have the chartering contract review legal professional ability, because the charter cont

35、ains more contract provisions, complicated terms and international carriage practices. obviously, these reasons and chartering development of transportation, meanwhile, the boycott ucp600 article 22 b paragraph no bank audit chartering contract with chinas maritime where provisions stipulated in the

36、 bill of lading for chartering contract provision is applicable when the voyage charter provisions conflict formation. if the issuing bank blind audit charter party b/l and dont consider chartering contract, will increase the risk of the document. in practice, the charter party b/l adopts is short f

37、orm bill of lading, its content than the liner shipping bills of lading, much less than the matters according to relevant shipping chartering contract provisions. ucp600 paragraph of article 22 of the l/c b is the healthy development, is a compromising the provisions and negative, the author thinks

38、that should be cancelled or modified this clause. therefore, issuing the credit business quick and efficient itself, should ascend audit chartering contract law professional ability.ucp600 anyhow, article 7 of the issuing bank about responsibility and the first 20, 22 about charter party b/l are the

39、 liability of the bankfrom the respective by method, it is required to grasp the issuing bank total responsibility and analysis under the charter party b/l, cannot be the responsibilitya double duty to understand. in addition, the issuing of responsibility, with the bill of lading contains charterin

40、g content of l/c, deepen the risk of ucp600 under article 22 of the l/c and the understanding of credit management filing status. butbank credit risks can affect the efficiency of flexible, because the international trade field of efficiency is demanding, if the issuing banklow rate will inevitably

41、promote trade subject for certain risks but high efficiency of telegraphic transfer (t/t). the issuing bank and other financial institutions should be careful single investment in the personnel department to improve the efficiency of the document also can prevent charter party b/l credit risk, kill

42、two birds with one stone. currently, the letter use the proportion in the international jiesuanliang already to 20%, the problem is not the international trade itself, but the issuing bank and other financial institutions the allocation of human resources, unreasonable in audit documents and risk pr

43、evention, etclink to the low efficiency.中文翻译：开证行在 ucp600租船提单中的责任被规范化 ucp600将开证行定义为，指应申请人要求或者代表自己开出信用证的银行。同时，若开证行国际贸易结算中其业务包括议付行为，则开证行议付是开证行在相符交单下，在其应获偿付的银行工作日当天或之前向受益人预付或者同意预付款项的行为。开证行在履行开证和议付等行为产生的责任，在 ucp600中第 7条被清晰而严谨地用列举的方式进行了规定。第 7条 a款规定了开证行付款责任的五大种类情况，即只要规定的单据被提交至被指定银行或开证行并构成相符交单，开证行必须按下述信用证所适

44、用的情形予以兑付：（一）信用证规定由开证行即期付款、延期付款或承兑；（二）信用证规定由指定银行即期付款但其未付款；（三）信用证规定由指定银行延期付款但其未承诺延期付款，或虽已承诺延期付款，但未在到期日付款；（四）信用证规定由指定银行承兑，但其未承兑以其为付款人的汇票，或虽然承兑了汇票，但未在到期日付款；（五）信用证规定由指定银行议付但其未议付。虽然是上述仅仅五个明细条款，但其中包括的银行必须付款的情形却是九种情况，而第 7条 a款又无补充性的兜底条款，可见，开证行的付款责任是被严格界定的。第 7条 b款规定了开证行对提交的相符单据的付款责任起始时间，即开证行自开立信用证之时起即不可撤销地承担承

45、付责任，也就是说，开证行自开立信用证之时就不可避免地受信用证条款和国际惯例的约束，只要相符单据交到开证行或开证行指定的付款银行，开证行的付款责任就已经形成。第 7条 b款拨开了开证行在 ucp500阶段可以朦胧化的面纱，从时间上进一步对开证行的责任进行了规定。但若从时间的逻辑顺序来看，第 7条 b款的开证行责任起始的规定应放在第 7条 a款的前面，因为只有先确定了开证行责任起始的时间，才能谈开证行必须兑付的责任情形。第 7条 c款规定了指定银行承付或议付相符交单并将单据转给开证行之后，开证行即承担偿付该指定银行的责任。对承兑或延期付款信用证下相符合单金额的偿付应在到期日办理，无论指定银行是否在

46、到期日之前预付或购买了单据，开证行偿付指定银行的责任独立于开证行对受益人的责任。依据第 7条 c款的规定可以看出，ucp600在确定开证行有义务偿付已付款的指定银行的同时，保护了被指定即期付款行、被指定远期付款行、被指定的承兑行和被指定保兑行的利益。2很明显，ucp600对开证行的责任适用于信用证结算的所有方面，当然也包括适用 ucp600第 22条租船提单的情况下开证行的义务和责任。 开证行在租船提单中的风险防范 ucp600第 22条 b款规定，银行将不审核租船合同，即使信用证要求提交租船合同。这一条款的规定无疑加大了开证行的风险。因为在在租船提单中存在海商法中“并入条款”的问题，即船东以

47、航次租船的方式将船租给承租人，并应承租人的要求签发提单，或者承租人会要求能代表船长而自行签发提单。租船合同下的提单在承租人手中只是作为出租人收到货物的证明，承租人与出租人之间的权利义务关系按照租船合同的规定，提单不再起证明海上货物运输合同的作用。但是提单发生转让时，承租人之外的第三人持有提单，则其与出租人的权利义务关系依提单记载，并受有关提单的国际公约与国内法的调整。在这种情况下，出租人为了维护自己的利益，尽量避免在提单发生转让时承担与租船合同不一致的义务和责任，常常在提单中载有租船合同某些内容的条款，称为“并入条款”。3其结果是使非租船合同的发货人、收货人和开证行等主体，在不知情和增加结算风

48、险的情况下被动地受他人租船合同的约束。开证行在租船提单中承担的风险及其防范因开证申请人与信用证受益人在国际货物买卖合同中选择的贸易术语不同而存在差异。（一）开证行在开证申请人与受益人选择 fob术语时的风险控制依信用证原理，信用证已经开立，就独立于国际买卖合同。信用证在法律上适用 ucp600，而国际买卖合同适用国际买卖条约、国际惯例和国内成文法和判例等。但不可否认，信用证与国际买卖合同虽然相互独立却又相互联系，彼此影响。信用证与国际买卖合同不符合导致买卖合同的修改、信用证的拒付，直接导致买卖双方的违约责任问题。若开证申请人与受益人在其国际货物买卖合同中选择 fob术语时，由国际货物买卖合同中的买方租船，而买方又通常是信用证的开证申请人，可见，买方的资信对开证行的支付风险影响较大。在 fob租船提单的情况下，国际货物买卖合同中的买方用自己租用的船舶运输货物，即船舶出租人与国际货物买卖合同中的买方之间依据的是租船合同，而船舶出租人与国际货物买卖合同中的卖方之间依据的是船舶出租人签发的提单。租船合同多是合同当事人意思自治的结果，而提单关系多受到国际海运条约和国内法强行法的规定。在租船合同与提单的冲突时，表面上看，对在国际货物买卖合同中不知情的卖方风险较大，但在信用证结算时，开证行只要在卖方提交的单据与信用证规定的单据相符时，依据 ucp600第 7条的规定，开证