信用证支付中基础合同的独立性探析

在信用证作为普遍支付方式的国际贸易过程中,基础合同是否独立于信用证一直是理论界和司法界颇具争议的问题.文章从理论基础和司法实践两方面对基础合同的独立性问题进行探讨,认为基础合同不能完全独立于信用证而存在,信用证的修改将对基础合同产生影响.在论证基础合同不完全独立于信用证的同时,分析了在信用证修改的情况下,基础合同的一方当事人还能不能以原合同中的权利救济条款向另一方主张权利的问题,并提出了处理具体案件所应遵循的规则.

On the Autonomy Principle of Underlying Contract in the Process of L/C-based Payment

Since L/C is the main vehicle for payment during the course of international trade,the debate that whether L/C is independent of the underlying contract or not has been carrying on at all times,both in theoretical and practical circles.This article focuses on a profound research on the autonomy principle of underlying contract both in theoretical and practical aspects,arguing that the underlying contract is not able to be performed as if it is absolutely independent of the L/C,i.e.,the variation of the L/C would have an impact on the terms of the underlying contract.Moreover,in the case of modifying the L/C,the problem that whether one party to the underlying contract,in accordance with the remedy clauses of the original underlying contract,is still entitled to claim for damages against the other party is also analyzed,with several rules which may be observed when handling such cases.