نویسندگان
1 دانشیار دانشکده حقوق و علوم سیاسی دانشگاه تهران.
2 دانشجوی کارشناسی ارشد حقوق خصوصی، دانشگاه آزاد اسلامی واحد تهران شمال.
چکیده
کلیدواژهها
عنوان مقاله [English]
نویسندگان [English]
Independent bank guarantee, used to guarantee contractual obligations and one of the main tools used in international trade, is an instrument created by the international procedure and customs. Bank guarantees have some features; the most important of them is independence from original and underlying contract. It means that an obligation to pay the amount of guarantee, merely is determined by reference to the conditions set forth in the text of the guarantee and agreements and obligations of the parties under the original contract have no effect on the right of beneficiary to receive the amount of guarantee. One of the results of independence principle is that guarantor can’t refer to faults in the original contract against beneficiary and is obliged to pay the amount of guarantee, without reviewing terms of the contract and merely by realization of guarantee conditions. By obtaining interim injunction from the courts, only in a few cases, in which there is strong evidence of fraud by the beneficiary, guarantor can refuse to pay amount of guarantee. Meanwhile, the principle of independence, such as other legal principles has exceptions, most notably, the apparent fraud and abuse of the rights by the beneficiary. Regarding ratification of independence principle in bank guarantees, there are differences between international and internal regulations, under domestic laws no division is dedicated to this subject. But since the new Commercial Law Bill has dedicated articles to independent guarantees, which have differences and similarities with international rules, it seems that applying proposed amendments and final ratification can be a turning point to increase bank guarantees, therefore to increase transactions, commerce development and economic prosperity of the country.
کلیدواژهها [English]
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