Требование платежа по банковской гарантии: тенденции российской и международной судебной практики
In article the main attention is paid to presentation of the requirement about payment and the payment according to bank guarantees. Basic provisions of article are based on the analysis of the jurisprudence developing concerning providing obligations in Russia and the international practice. Thus it is emphasized that the appeal to payment happens very seldom, but possibility of receipt of payment has essential impact on security function.
Possibility of implementation of payment first of all is defined by actions of the beneficiary who has to process correctly the documents attached to payment. The payer in return analyzes their contents and considers a ratio of the contents of the provided and main obligation. It is one of key questions, implementation of payment according to the bank guarantee depends on the answer on which. The author as a result of research of the Russian jurisprudence established that now there are two opposite tendencies. In public obligations bank guarantees become more and more independent of the provided obligation up to that some courts consider that bank guarantees in principle provide a certain type of the obligation of the principal, for example, customs payments for a certain period without binding to the concrete contract. In private-law obligations jurisprudence develops exactly the opposite: judge very rigidly demand a binding of guarantee certificates to the provided legal relationship. But anyway possibility of payment is defined by the correct link to the provided obligation.
Further such elements, significant for payment, as a form of presentation of the requirement, a place and terms of presentation of the requirement about payment, the refusal bases in payment, etc. are analyzed. Among the circumstances influencing payment according to the bank guarantee such parameters as legal status of the subject which imposed requirement and registration of powers of the corresponding person. In article cases when during guarantee period such status changed are analyzed, and powers of the person are defined incorrectly. Besides implementation of payment depends on the volume of the documents confirming violation of the obligation by the debtor. The circle of the analyzed problems included also payment ban questions, etc.