3454.C UCP600租船提單中開證行的責(zé)任及風(fēng)險(xiǎn)防范 英語文獻(xiàn)及翻譯

1、學(xué)院2010屆畢業(yè)生畢業(yè)論文英 文 文 獻(xiàn)院(系)別 經(jīng)濟(jì)系 專 業(yè) 國際經(jīng)濟(jì)與貿(mào)易 班 級 國專 學(xué) 號 姓 名 指導(dǎo)教師 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.中文翻譯：開證行在 ucp600租船提單中的責(zé)任被規(guī)范化 ucp600將開證行定義為，指應(yīng)申請人要求或者代表自己開出信用證的銀行。同時(shí)，若開證行國際貿(mào)易結(jié)算中其業(yè)務(wù)包括議付行為，則開證行議付是開證行在相符交單下，在其應(yīng)獲償付的銀行工作日當(dāng)天或之前向受益人預(yù)付或者同意預(yù)付款項(xiàng)的行為。開證行在履行開證和議付等行為產(chǎn)生的責(zé)任，在 ucp600中第 7條被清晰而嚴(yán)謹(jǐn)?shù)赜昧信e的方式進(jìn)行了規(guī)定。第 7條 a款規(guī)定了開證行付款責(zé)任的五大種類情況，即只要規(guī)定的單據(jù)被提交至被指定銀行或開證行并構(gòu)成相符交單，開證行必須按下述信用證所適

44、用的情形予以兌付：（一）信用證規(guī)定由開證行即期付款、延期付款或承兌；（二）信用證規(guī)定由指定銀行即期付款但其未付款；（三）信用證規(guī)定由指定銀行延期付款但其未承諾延期付款，或雖已承諾延期付款，但未在到期日付款；（四）信用證規(guī)定由指定銀行承兌，但其未承兌以其為付款人的匯票，或雖然承兌了匯票，但未在到期日付款；（五）信用證規(guī)定由指定銀行議付但其未議付。雖然是上述僅僅五個(gè)明細(xì)條款，但其中包括的銀行必須付款的情形卻是九種情況，而第 7條 a款又無補(bǔ)充性的兜底條款，可見，開證行的付款責(zé)任是被嚴(yán)格界定的。第 7條 b款規(guī)定了開證行對提交的相符單據(jù)的付款責(zé)任起始時(shí)間，即開證行自開立信用證之時(shí)起即不可撤銷地承擔(dān)承

45、付責(zé)任，也就是說，開證行自開立信用證之時(shí)就不可避免地受信用證條款和國際慣例的約束，只要相符單據(jù)交到開證行或開證行指定的付款銀行，開證行的付款責(zé)任就已經(jīng)形成。第 7條 b款撥開了開證行在 ucp500階段可以朦朧化的面紗，從時(shí)間上進(jìn)一步對開證行的責(zé)任進(jìn)行了規(guī)定。但若從時(shí)間的邏輯順序來看，第 7條 b款的開證行責(zé)任起始的規(guī)定應(yīng)放在第 7條 a款的前面，因?yàn)橹挥邢却_定了開證行責(zé)任起始的時(shí)間，才能談開證行必須兌付的責(zé)任情形。第 7條 c款規(guī)定了指定銀行承付或議付相符交單并將單據(jù)轉(zhuǎn)給開證行之后，開證行即承擔(dān)償付該指定銀行的責(zé)任。對承兌或延期付款信用證下相符合單金額的償付應(yīng)在到期日辦理，無論指定銀行是否在

46、到期日之前預(yù)付或購買了單據(jù)，開證行償付指定銀行的責(zé)任獨(dú)立于開證行對受益人的責(zé)任。依據(jù)第 7條 c款的規(guī)定可以看出，ucp600在確定開證行有義務(wù)償付已付款的指定銀行的同時(shí)，保護(hù)了被指定即期付款行、被指定遠(yuǎn)期付款行、被指定的承兌行和被指定保兌行的利益。2很明顯，ucp600對開證行的責(zé)任適用于信用證結(jié)算的所有方面，當(dāng)然也包括適用 ucp600第 22條租船提單的情況下開證行的義務(wù)和責(zé)任。 開證行在租船提單中的風(fēng)險(xiǎn)防范 ucp600第 22條 b款規(guī)定，銀行將不審核租船合同，即使信用證要求提交租船合同。這一條款的規(guī)定無疑加大了開證行的風(fēng)險(xiǎn)。因?yàn)樵谠谧獯釂沃写嬖诤Ｉ谭ㄖ小安⑷霔l款”的問題，即船東以

47、航次租船的方式將船租給承租人，并應(yīng)承租人的要求簽發(fā)提單，或者承租人會(huì)要求能代表船長而自行簽發(fā)提單。租船合同下的提單在承租人手中只是作為出租人收到貨物的證明，承租人與出租人之間的權(quán)利義務(wù)關(guān)系按照租船合同的規(guī)定，提單不再起證明海上貨物運(yùn)輸合同的作用。但是提單發(fā)生轉(zhuǎn)讓時(shí)，承租人之外的第三人持有提單，則其與出租人的權(quán)利義務(wù)關(guān)系依提單記載，并受有關(guān)提單的國際公約與國內(nèi)法的調(diào)整。在這種情況下，出租人為了維護(hù)自己的利益，盡量避免在提單發(fā)生轉(zhuǎn)讓時(shí)承擔(dān)與租船合同不一致的義務(wù)和責(zé)任，常常在提單中載有租船合同某些內(nèi)容的條款，稱為“并入條款”。3其結(jié)果是使非租船合同的發(fā)貨人、收貨人和開證行等主體，在不知情和增加結(jié)算風(fēng)

48、險(xiǎn)的情況下被動(dòng)地受他人租船合同的約束。開證行在租船提單中承擔(dān)的風(fēng)險(xiǎn)及其防范因開證申請人與信用證受益人在國際貨物買賣合同中選擇的貿(mào)易術(shù)語不同而存在差異。（一）開證行在開證申請人與受益人選擇 fob術(shù)語時(shí)的風(fēng)險(xiǎn)控制依信用證原理，信用證已經(jīng)開立，就獨(dú)立于國際買賣合同。信用證在法律上適用 ucp600，而國際買賣合同適用國際買賣條約、國際慣例和國內(nèi)成文法和判例等。但不可否認(rèn)，信用證與國際買賣合同雖然相互獨(dú)立卻又相互聯(lián)系，彼此影響。信用證與國際買賣合同不符合導(dǎo)致買賣合同的修改、信用證的拒付，直接導(dǎo)致買賣雙方的違約責(zé)任問題。若開證申請人與受益人在其國際貨物買賣合同中選擇 fob術(shù)語時(shí)，由國際貨物買賣合同中的買方租船，而買方又通常是信用證的開證申請人，可見，買方的資信對開證行的支付風(fēng)險(xiǎn)影響較大。在 fob租船提單的情況下，國際貨物買賣合同中的買方用自己租用的船舶運(yùn)輸貨物，即船舶出租人與國際貨物買賣合同中的買方之間依據(jù)的是租船合同，而船舶出租人與國際貨物買賣合同中的賣方之間依據(jù)的是船舶出租人簽發(fā)的提單。租船合同多是合同當(dāng)事人意思自治的結(jié)果，而提單關(guān)系多受到國際海運(yùn)條約和國內(nèi)法強(qiáng)行法的規(guī)定。在租船合同與提單的沖突時(shí)，表面上看，對在國際貨物買賣合同中不知情的賣方風(fēng)險(xiǎn)較大，但在信用證結(jié)算時(shí)，開證行只要在賣方提交的單據(jù)與信用證規(guī)定的單據(jù)相符時(shí)，依據(jù) ucp600第 7條的規(guī)定，開證