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课程负责人
 
王 衡
西南政法大学
国际法学院教授
西南政法大学研究生导师,法学博士、国际投资与金融法律研究中心副主任。兼任(以时间为序)(世界)国际经济法协会常务理事、亚洲国际经济法网络常务理事、中国国际经济法学会理事、中国法学会国际经济法学研究会理事、西班牙马德里仲裁院仲裁员、国际可持续发展研究院董事等职。(更多
 
 
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贸易支付法成案试卷一参考答案
 

I
案例分析题


Suggested answer:

1. In this case, by the application of XWC, EB issued the L/C, with RC as the beneficiary, thus the bill relation of the L/C between RC and EB occurred and was separate with the original Sales Contract of Elevator. Article 13 of UCP500 stipulates: Banks must examine all documents stipulated in the Credit with reasonable care, to ascertain whether or not they appear, on their face, to be in compliance with the terms and conditions of the Credit. Compliance of the stipulated documents on their face with the terms and conditions of the Credit shall be determined by international standard banking practice as reflected in these Articles. Documents which appear on their face to be inconsistent with one another will be considered as not appearing on their face to be in compliance with the terms and conditions of the Credit. Article 14 stipulates: If the documents appear on their face not to be in compliance with the terms and conditions of the Credit, such banks may refuse to take up the documents. If the Issuing Bank determines that the documents appear on their face not to be in compliance with the terms and conditions of the Credit, it may in its sole judgment approach the Applicant for a waiver of the discrepancy (ies). This does not, however, extend the period of seven banking days following the day of receipt of the documents. This Article also stipulates: If the Issuing Bank acting on its behalf, decides to refuse the documents, it must give notice to that effect by telecommunication or, if that is not possible, by other expeditious means, without delay but no later than the close of the seventh banking day following the day of receipt of the documents. Such notice shall be given to the bank from which it received the documents. Such notice must state all discrepancies in respect of which the bank refuses the documents and must also state whether it is holding the documents at the disposal of, or is returning them to, the presenter.

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2.Although Article 14 (C) of UCP500 stipulate that the Issuing Bank may in its sole judgment approach the Applicant for a waiver of the discrepancy (ies), it gives the presentation bank only the sole-judgment-right to approach the applicant for a waiver of the discrepancy (ies), but not the right referred to the payment, after the applicant waiving the discrepancies, paid to the beneficiary of the L/C. To settle this problem shall base on Article 9and Article 3 of UCP500. Article 9 (a) of UCP500 stipulates: “An irrevocable Credit constitutes a definite undertaking of the Issuing Bank, provided that the stipulated documents are presented to the Nominated Bank or to the Issuing Bank and that the terms and conditions of the Credit are complied with each other”, and Article 3 (b) stipulates: “A Beneficiary can in no case avail himself of the contractual relationships existing between the banks or between the Applicant and the Issuing Bank.” The regulations mentioned above show that: the Issuing Bank has legal liability to pay the Beneficiary of the irrevocable Credit as long as the documents are compiled with the terms and conditions of the Credit. To waive the discrepancy by the applicant cannot constitute the paying promise of the Issuing Bank. Under this condition, the Issuing Bank may in its sole judgment decides whether to pay the Beneficiary of the L/C in accordance with the direction of the Applicant, that is, under the condition that the Applicant waiving the discrepancy(ies), the Issuing Bank has no legal liability to pay the Beneficiary. Further, the contractual relation between the Beneficiary of the L/C and the Issuing Bank is independent of the contractual relation between the Applicant of the L/C and the Issuing Bank, thus the Beneficiary cannot use the contractual relation between the Applicant of the L/C and the Issuing Bank to plead the Issuing Bank on the reason of that the Applicant waiving the discrepancy (ies), which cannot constitute the effective plea. Thereby, it is appropriated and in line with UCP500 that EB refused to pay RC, disregarding the notice of XWC waiving the discrepancies. In the court investigation, RC holds that EB shall pay after the Applicant waiving the discrepancies, which will not be supported by this court. It belongs to improperly quote the law that: the original court connected the problem that whether the Issuing bank shall pay after RC’s waiving the discrepancies with the examining period, seven banking days stipulated by UCP500 in respect that the date XEC stating to waive the discrepancies has no legal connection with the examining period. Thereby, this court supports the claim of the Appellant that it is inappropriate for the original court to apply UCP500.

 

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II
简答题


Suggested answer:

•the remitting bank, at the request of the remitter, transfers the funds by means of sending/posting a payment instruction to the paying bank, asking the latter to pay a certain sum of money to the payee.

•M/T makes use of post service to transfer the payment instructions. a payment instruction is an authenticated order in writing addressed by the remitting bank to the paying bank.

•in M/T, the payment instruction can take the form of Mail Transfer Advice or Mail Transfer Payment Order or Debit Advice

III 图表题

 



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