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UNCITRALМ 1 С
MODEL LAW(斗/ЧЧ/巧 ,Ам»/В/1
ON INTERNATIONALр. 4 ? - И ) .
CREDIT TRANSFERS附件一 (原文:阿拉伯文、中文、
UNITED NAnONS英文、俄文、西班牙文)
1994CONTENTS贸易法委员会国际贷记划拨示范法
Page第一章、总则
UNCITRAL MODEL LAW ON INTERNATIONAL CREDIT第1条
TRANSFERS .适用范围
Chapter I. General provisions( 1 )本法适用于任何发送银行和接收银行位于不同国家时的贷记划拨。
Article 1. Sphere of application. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1(2) 本法以适用于银行的同样方式适用于以从事执行支付命令作为其正常业务 的一部分的其他实体。 ( 3 )为确定本法适用范围之目的,一家银行设于不同国家的分行及单独的办事
Article 2. Definitions........................................ 1处视为单独的银行。
Article 3. Conditional instructions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3- 委员会建议以下案文,供各国选择通过:
Article 4. Variation by agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3♦ 本法不处理有关保护消费者的问题。
Article 10.第У条
Article 11.⑴由一项支付命令产生的权利和义务应由当事各方所选定的法律所制约。若
Chapter /I.无协议,则应适用接收银行国家的法律。
Article 5.( 2 )第⑴款第二句的规定并不影响确定以何种法律管辖支付命令的实际发送人
Article 6.是否有权使名义发送人承担责任的问题。
Article 7.⑶为本条之目的:
Article 8.(а )如一个国家包含的若干领土单位各自有不同的法律规则者,其每一领
Article 9.法律冲突
Article 12.土单位均应看作是一个单独的国家;(Ь) 一家银行设在不同国家的分行和单独的办事处均为单独的银行。
Chapter lll.第2条 定义 г 为本法之目的:
Article 13.(a) “贷记划拨”系指由发端人的支付命令开始,为将资金交由某一受益人支
Article 14.配而进行的一系列业务活动。本用语包括发端人银行或任何中间银行为实施发端人
Article 15.的支付命令而签发的任何支付命令。为实施此种命令的付款而签发的支付命令应视
Article 16.为另一贷记划拨的一部分;
Article 17.(b) “支付命令”系指发送人以任何形式向接收银行发出的,请其将一笔已确
Article 18.定或可确定数额的款项交由某一受益人支配的无条件指示,如果
Obligations of the parties㈠ 接收银行将通过借记发送人帐户或收取发送人的付款而获得偿还,和
Obligations of sender .( = )该指示不规定须凭受益人的要求而进行付款。
Payment to receiving bank .本款的任何规定并不仅仅由于一项指示要求受益人银行在未在该行开立帐户的受益
Acceptance or rejection of a payment order by receiving人要求付款以前为该受益人保留资金而妨碍其成为一项支付命令; (О “发端人”系指贷记划拨中第一项支付命令的签发人;
bank other than the beneficiary's bank .(а) “受益人”系指发端人支付命令中指定的,作为贷记划拨结果而将收到资
Obligations of receiving bank other than the beneficiary's金的人,
bank .(е) “发送人”系指签发一项支付命令的人,包括发端人和任何发送银行;
Acceptance or rejection of a payment order by beneficiary's0 0 “接收银行”系指收到一项支付命令的银行; (8) “中间银行”系指除发端人银行和受益人银行以外的任何接收银行;
bank .(Ю “资金”或 “款项”包括在银行开立的帐户中的贷方,并包括由某一政府
Obligations of beneficiary's bank .间机构确定的或经由两国或两国以上的协议所确定的货币记帐单位表示的贷方,但
Time for receiving bank to execute payment order and give本法的适用不应损害有关政府间机构的规则或有关协议的规定》 (1) “核证”系指为了核实某一支付命令或修正或撤销某一支付命令的通知是
notices .否确由名义发送人签发而协议确立的一种程序,
Revocation .о*) “银行营业曰”系指一天中银行执行有关一类行动的那一部分时间》
Consequences offailed. erroneous or delayed credit transfers(к) “执行期”系指一天或两天的一段时间,自一项支付命令按第11条笫(1)款可予执行的第一天起,至按该条规定可予执行的最后一天止;
Assistance .(1) “执行”就其适用于非受益人银行的接收银行而言,系指接收银行签发一
Refund .项支付命令以实施所收到的支付命令;
Correction of underpayment .(т) “利息”系指所涉资金或款项的时间价值,除非另有协议,按银行界对所涉
Restitution of overpayment .资金或款项通常接受的利率计算,并以其通常接受的做法为基础。
Liability for interest .第3条
Exclusivity of remedies .有条件指示
3( 1 )如果一项指示因为附有条件而不是一项支付命令,但收到该指示的一家银
4行签发了一项无条件支付命令而执行了该指示,此后,该指示的发送人根据本法拥有
5同支付命令发送人一样的权利和义务,而该指示中指定的受益人亦应作为一项支付
6命令的受益人处理。
6( 2 )本法并不制约银行收到的有条件指示的执行时间,也不影响取决于条件是
7否得到满足的某项有条件指示的发送人的任何权利或义务。
8第4条
9经由协议的改动
10除本法内另有规定者外,贷记划拨各当事方的权利与义务可经由各当事方的协
10议加以改动。
11第二章、各当事方的义务
11第5条
11发送人的义务
12(1) 如果支付命令或修正或撤销支付命令的通知系由发送人签发或由有权约朿
Chapter IV. Completion of credit transfer发送人的另一人签发,则发送人应对该命令或通知承担责任。
Article 19. Completion of credit transfer 13( 2 )如果一项支付命令或修正或撤销支付命令的通知需经过核证,而核证方法
EXPLANATORY NOTE BY THE UNCITRAL SECRETARIAT ON THE并非仅仅是核对签字者,则按第⑴款规定不承担责任的名义发送人在下列情况下仍
UNCITRAL MODEL LAW ON INTERNATIONAL CREDIT应承担责任:(a) 该核证在这种情况下是防范未经授权的支付命令而采用的商业上合理
TRANSFERS.................................................. 14的核实方法,而且 ( b )接收银行遵循了核证程序。 ( 3 )各当事方不得商定,在核证按具体情况并非商业上合理的情况下,名义发送 人仍按第( 2 )款规定承担责任。 ( 4 )但是,名义发送人如能证明接收银行所收到的支付命令不是由于 ( a )名义发送人的现任或前任雇员的行为,或 ( b )由于其同名义发送人的关系使其得以动用核证程序的某一人的行为, 而是由于其他人的行为所造成,则名义发送人不按第( 2 )款规定承担责任。如果接 收银行证明,该支付命令系因某人通过名义发送人的过失而得以动用校证程序从而 采取行动所造成,则前一句话不适用。 ( 5 )对一项支付命令承担责任的发送人应受到接收银行所收到的命令的条件约 束。但在下述情况下,发送人并不对支付命令的错误复本或其中的差错或差异承担 责任: (a) 发送人与接收银行商定了用以查出支付命令的错误重复、差错或差异 的一种程序,而且 ( b )接收银行使用该程序查出了或本应查出错误复本、差错或差异。 如果该银行本应查出的差错或差异是发送人指示支付的款額大于其本拟拨付的款 額,则发送人只对其本拟拨付的款额负有责任。第(5) 款如同适用于支付命令的差 错或差异一样,也适用于修正或撤销命令中的差错或差异。 ( 6 )当接收银行接受了支付命令时,发送人即有义务就所发支付命令向接收银 行付款,但只有到了执行期开始才应进行支付。 第6条 对接收银行的付款 为本法之目的,发送人在下述情况下即为按第5条第( 6 )款规定支付了其应向接 收银行支付的款项: (а)如果接收银行采用借记发送人在接收银行开立的帐户的方式,当作出此项借记时;或者 ( b )如果发送人系一家银行而(а)项不适用,则为 (一) 当发送人使接收银行在发送人处开立的帐户得到贷记后该贷记款 被使用时,如未被使用,则为该贷记款可予使用以及接收银行知悉 该情况之日的下一个银行营业В,或者 а 当发送人使接收银行在另一银行中开立的帐户得到贷记后该贷记 款被使用时,如未被使用,则为该贷记款可予使用以及接收银行知 悉该情况之曰的下一个银行营业曰,或者 曰当接收银行在其开有帐户的某一中央银行为该接收银行作了最后 结算时,或者 卿当以下列方式为该接收银行作了最后结算时: a. 根据参与者之间就其应付款项实行双边或多边结算的资金划 拨系统的规则,或者 b . 根据与发送人订立的双边相抵结算协议,或者 ( c )如果(а)项和(Ь〉项均不适用,已按法律规定的其他方式处理。 第7条 受益人银行以外的接收银行对支付命令的接受或拒绝 ( 1 )本条规定适用于受益人银行以外的接收银行。 ( 2 )接收银行在下列情况下即为接受了发送人的支付命令,其时间以最先发生 者为准: <а)该银行收到了支付命令,如果发送人与该银行已事先商定,银行一接到 发送人的支付命令即予执行; ( b )该银行向发送人发出了接受通知, ( c )该银行签发了一项支付命令用以实施所收到的支付命令, (а)作为支付命令的付款方式,该银行借记了发送人在该银行开立的帐户, (е)第( 3 )款规定的发出拒绝通知的时间已过而没有发出通知( 3 )不接受支付命令的接收银行,须发出拒绝通知,其时间不得晚于执行期终了 后的第一个银行营业日,除非: ( a )凡付款方式是借记发送人在该接收银行中的帐户者,该帐户内尚无足 够的资金按支付命令付款; ( b )在应以其他方式付款的情况下,尚未进行付款, 或者 ( c )资料不足,无法确定发送人身份。 ( 4 )如果在执行期终了后的第五个银行营业日终止营业之前,一项支付命令根 据本条既未被接受也未被拒绝,则该项支付命令即告失效。 第8条 受益人银行以外的接收银行的义务 ( 1 )本条规定适用于受益人银行以外的接收银行。 ( 2 )接受支付命令的接收银行,有义务按照该支付命令,在第11条规定的时间内 向受益人银行或某一中间银行签发一项支付命令,其内容应与该接收银行收到的支 付命令相一致,且其中应载有以适当方式执行贷记划拨所需的指示。 (3) 如果接收银行认定无法遵循发送人关于执行贷记划拨时使用其指定的中间 银行或资金划拨系统的指示,或遵循该指示会给完成贷记划拨造成过高的费用或廷 误,那么如果接收银行在执行期终了之前,就所应采取的进一步行动询问过发送人, 即应认为该接收银行遵守了第( 2 )款规定。 ( 4 )如所收到的指示虽看来有意作为一项支付命令,但因其中所含资料不全而 不构成支付命令,或虽是支付命令,却因资料不全而不能执行,但仍能确定发送人者, 则接收银行应在第1 1条规定的时间内将资料不全一事通知发送人。 ( 5 )如接收银行发现有关拟划拨的金额的信息出现不一致之处,在能够确定发 送人身份的情况下,它应在第1 1条规定的时间内,将此种不一致情事通知发送人。由 于不按本款要求发出通知而根据第1 7睾第( 4 )款规定应予支付的任何利息,应从根 据第1 7条第(1)款因不遵守本条第(2)敖所应支付的任何利息中扣除。 ( 6 )为本条之目的,银行的分行和单独的办事处,即使设于同一国家内,也视作 单独的银行。мш 受益人银行对支付命令的捿受或拒绝 ( 1 )受益人银行在下列情况下即为接受了支付命令,其时间以最先发生者为准: ( a )该银行收到了支付命令,如果发送人和该银行业已商定,该银行收到该 发送人的支付命令时即予执行; ( b )该银行向发送人发出了接受通知; ( c )该银行作为对该项支付命令的付款,借记了发送人在该银行开立的帐 ( а )该银行贷记了受益人帐户或以其他方式将资金交由受益人支配; (е)该银行已通知受益人有权提取资金或使用贷记; а)该银行按照支付命令中的指示以其他方式处理了贷记; (е) 该银行将贷记用于偿付受益人欠该银行的债务或依照法院或其他主管 当局的命令处理了贷记;或 (Ю 第( 2 )款规定的发出拒绝通知的时间已过而并未发出拒绝通知。 < 2 )受益人银行如不接受一项支付命令,则须在不晚于执行期终了后第一个银 行营业曰发出拒绝通知,除非: ( a )如付款方式应是借记发送人在受益人银行的帐户者,该帐户中可动用 的资金尚不足以支付该支付命令的金额, ( b )如付款应以其他方式进行,尚未进行付款;或 ( c )资料不足,无法确定发送人的身份。 ( 3 )如果一项支付命令在执行期终了后的第五个银行营业В终止营业之前,按 本条的规定既未被接受也未被拒绝,則该项支付命令即告失效。 笫10条 受益人银行的义务 ( 1 )受益人银行一旦接受了所收到的支付命令,即有义务按照支付命令及制约 银行与受益人关系的法律,将资金交由受益人支配,或以其他方式处理该项贷记。( 2 )如所收到的指示看来拟作为支付命令,但因其中所含资料不全,而不构成支 付命令,或虽为支付命令但因资料不全而无法执行,但仍能确定发送人的身份,则受 益人银行应在第11条规定的时间内将资科不全一事通知发送人。 ( 3 )如受益人银行发现有关拟划拨的金额的信息出现不一致之处,在能够确定 发送人身份的情况下,它应在第11条规定的时间内,将此不一致情况通知发送人。 ( 4 )如受益人银行发现旨在确定受益人身份的信息有不一致之处,在能够确定 发送人身份的情况下,它应在第11条规定的时间内,将此不一致情况通知发送人。 ( 5 )如受益人在受益人银行中没有帐户,除非支付命令中另有说明,否则,在该 银行有充分的资料可向受益人发出通知时,受益人银行应在第1 1条规定的执行时间 内通知该受益人,该银行持有一笔拨给受益人的资金。 第11条 接收银行执行支付命令和发出通知的时间 ( 1 )原则上,有义务执行一项支付命令的接收银行须在其收到支付命令之银行 营业日执行支付命令。如当日没有执行,即应在收到支付命令后的第一个银行营业 曰执行。但是,如 ( a )支付命令中规定了更晚的日期,则应在该日执行支付命令,或者 ( b )支付命令中规定了应将资金交由受益人支記的日期,且该曰期表明,为 使受益人银行接受某一支付命令并在该日期执行,较晚执行是适宜的, 则应在该曰期执行命令。 ( 2 )除遵照第( 1 )款(а)或(Ь)項行事的情况外,如果接收银行在收到支付命 令后第一个银行营业日执行支付命令,则接收银行在执行时须按收到之日起计息。 ( 3 ) 如果接收银行因根据第7条第(2〉款(е) 项规定而有义务执行一项支付命 令,则须在执行时自收到支付命令之曰起或自下述曰期起计息,两者以较晚者为准: ( a )如付款方式是借记发送人在接收银行中的帐户者,在该帐户中有足够 的资金按支付命令付款之В,或者 ( b )如以其他方式付款者,作出了付款之曰。 ( 4 )根据第8 条第(4)或笫( 5 )款或根据第10条第(2)、第(3)或第(4)款规定要求发出的通知,应在执行期终了后第一个银行营业曰或该营业曰之前发出。 ( 5 )接收银行如在其对某一类支付命令的处理时限截止后收到该类支付命令, 它有权将其作为在下一个执行该类支付命令之日收到的命令来处理。 ( 6 )如果接收银行被要求在其不执行某一类行动的某曰执行该类行动,则它须 在其下一个执行该类行动之日执行所要求的行动。 ( 7 )为本条之目的,银行的分行和单独的办事处,即使设于同一国家内,也视作 单独的银行。 第12条 撤销 ( 1 )发送人不得撤销一项支付命令,除非受益人银行之外的一家接收银行收到 该撤销命令的时间和方式足以使该接收银行有合理的机会,在实际执行时间或在第 1 1条第( 1 )款(а)项或(Ь〉项所述支付命令应予执行之日开始(两者以较晚者为准) 以前,采取行动。 ( 2 )发送人不得撤销一项支付命令,除非受益人银行收到该撤销命令的时间和 方式使该银行有合理的机会,在完成贷记划拨或在资金应交给受益人支配之曰开始 (两者以较晚者为准)以前,采取行动。 ( 3 )尽管有第(1〉和(2)款的规定,发送人和接收银行可以议定,发送人发给接收 银行的支付命令是不可撤销的,或只有在早于第(1)或(2)款规定的时间收到撤销命 令时,该撤销命令才是有效的。 ( 4 )撤销命令必须是经过核证'的。 ( 5 )如果受益人银行之外的一家接收银行执行了,或一家受益人银行接受了一 项支付命令,但又已收到或随后收到了对于该支付命令的有效撤销命令,则该银行无 权获得该支付命令的付款。如果贷记划拨已经完成,则该银行应退还它所收到的任 何付款。 < 6 )如某项退款的收款人不是贷记划拨的发端人,它应将退款送交其发送人。 ( 7 ) 有义务向其发送人作出退款的银行,按其直接向前面一家银行作出的退款 数額履行了该部分义务。跟在该前面发送人之后的任何银行亦按同样数額履行了义( 8 ) 按本条规定有权获得退款的发端人,可从有义务按本条规定作出退款的任 何银行收回其应退未退的’款项。有义务作出退款的银行按其直接向发端人作出的退 款数额,履行了该部分义务。负有义务的任何其他银行亦按同样数额履行了义务。 ( 9 )如第(7)和第(8)款影响一家银行根据任何协定或一个资金划拨系统的任何 规则而有的权利和义务,则该两款不适用于该银行。 ( 1 0 )如果贷记划拨已告完成,但一家接收银行执行了一项支付命令而同时又收 到了或随后收到了对于该支付命令的有效撤销命令,则该接收银行按法律可能规定 的其他办法,有权向受益人索回该贷记划拨的款额。 ( 1 1 )发送人或发端人的死亡、无力清偿债务、破产或失去能力的事实本身并不 能起到撤销支付命令的作用,也不能终止发送人的权力。 ( 1 2 )本条所载的各项原则适用于对支付命令的修正。 ( 1 3 )为本条之目的,一家银行的分行和单独的办事处,即使设在同一个国家内, 也视作单独的银行。 第三章、贷记划拨未能完成或发生差错或迟延的后果 笫13条 协助 在贷记划拨得到完成之前,每一个接收银行均应协助发端人及每一个随后的发 送银行,同时争取得到下一个接收银行的协助,以期完成该贷记划拨的银行程序。 第14条 退款 ( 1 )如贷记划拨未得到完成,发端人银行有义务将其收到的、发端人已支付的 任何款项,连同自支付曰至退款日应有之利息,退给发端人。发端人银行及随后的每 一个接收银行亦有权索回它已支付给其接收银行的任何款项,连同自支付曰至退款 务 。曰应有的利息。 ( 2 )第( 1 )款的规定不得以协议方式作出变动,除非一家审慎的发端人银行认 为某项支付命令的贷记划拨所涉风险重大,如不变动上述规定,则不会接受该支付命 令。 ( 3 )如果某一接收银行被指示应通过某一家中间银行进行该贷记划拨,由于该 中间银行停止了付款或法律不允许其退款而使该接收银行无法得到退款资金,则该 接收银行无须按第( 1 )款规定进行退款。除非接收银行能证明,在类似情况下,它并 不有系统地寻求此种指示,否则不能认为该接收银行曾得到关于使用该中间银行的 指示。首先指明要使用该中间银行的发送人有杈获得该中间银行的退款。 < 4 )有义务向其发送人作出退款的银行,按其直接向前面一家银行作出的退款 数额,履行了此部分义务。跟在该前面发送人之后的任何银行亦按同样数额履行了 义务。 < 5 )按本条规定有权获得退款的发端人,可从有义务按本条规定作出退款的任 何银行收回其应退未退款项。有义务作出退款的银行,按其直接向发端人作出的退 款数额,履行了该部分义务。负有义务的任何其他银行亦按同样数额履行了义务。 ( 6 )如第( 4 )和第(5) 款影响一家银行根据任何协定或一个资金划拨系统的任 何规定而有的权利或义务,则该两款不适用于该银行。 第1 5条 补足欠缺款 如果某一接收银行执行的支付命令的款额少于它所接受的支付命令的款额,除 非这是扣除其手续费的结果,否则该银行有义务发出一项支付命令来补足欠缺的差 额。 第16条 退回多付款 如贷记划拨巳告完成,但某一接收银行执行的支付命令的款額大于它所接受的支付命令的款额,则该银行有权根据法律规定的其他办法,向受益人索回上述差额。 第 贿 利息的赔偿责任 ( 1 )若贷记划拨已完成,则不遵守第8条第(2)款义务的接收银行,对受益人负有 赔偿责任。该接收银行的赔偿责任是按支付命令上的金额支付由于接收银行未遵守 义务而造成迟延期间的利息。若这种迟延仅涉及支付命令上的部分款额,则赔偿责 任是支付迟延款额的利息。 ( 2 )第(1) 款所定接收银行的赔偿责任可采取向其接收银行付款或直接向受益 人付款的方式解除。若某一接收银行接收了此种付款,但并非受益人,则该接收银行 应将利息款项转交下一个接收银行,若它是受益人银行,则交给受益人。 ( 3 )发端人可收回受益人根据第⑴和⑵款有杈取得但未收到的利息,只要发端 人因完成贷记划拨的迟廷而向受益人支付了利息。发端人银行和随后各接收银行, 只要不是第⑴款规定负有赔偿责任的银行,均可从其接收银行或从第⑴款规定负賠 偿责任的银行收回它原先支付给其发送人的利息。 ( 4 )某一接收银行若未能根据第8条第⑷或第(5)款的规定发出通知,则对于它根 据第5条第(6)款收到的来自发送人的任何付款,应向发送人支付它持有该款项期间的 利息。 ( 5 ) 若受益人银行未根据第1 0条第⑵、第(3)或第(4)款的规定发出通知,则对 于它根据第5条第(6)款收到的来自发送人的任何付款,应向发送人支付它持有该款项 期间的利息。 ( 6 )受益人银行若未能履行第10条第⑴款或第(5)款规定的义务之一,则应依照 有关受益人和银行间关系的法律,向受益人提供赔偿。 ( 7 )各银行可通过协议,对本条的规定作出变动,增减某一银行对另一银行的赔 偿责任。减少赔偿责任的协议可载入银行的标准营业规章之中。任何银行可同意增 大其对某一非银行的发端人或受益人的赔偿责任,但不得减少其对此种发端人或受 益人的赔偿责任。特别是不得以确定利率的协议来减少其赔偿责任》第1 8条 补救措施的专属性 第1 7条规定的补救措施是专属性的,对于不遵守第8条或第1 0条的情况不得采用 由其他法律原则产生的任何其他补救措施,但针对下述情况可能存在的补救措施除 外:银行对支付命令执行不当或未予执行,原因是(а〉故意要造成损失,或(Ъ) 草率 行事且实际知道很可能会造成损失。 第四章、贷记划拨的完成 第1 9条 贷记划拨的完成 (1) 一项贷记划拨在受益人银行接受了划拨给受益人的支付命令时即告完成。 当贷记划拨完成时,受益人银行即有义务向受益人支付它所接受的支付命令的金 額。划拨的完成并不在其他方面影响受益人与受益人银行之间的关系。 (2) 即使受益人银行接受的支付命令的金额因一家或几家接收银行从中扣除了 手续费而少于发端人支付命令的金額,贷记划拨亦视为已告完成。贷记划拨的完成 并不应影响受益人根据制约基本义务的适用法律向发端人索回上述手续费款額的任 何杈利。 委员会建议以下案文,供各国选择通过: 如贷记划拨是为了发端人清偿其对受益人的一项债务,且可通过向发端人 指定的帐户进行贷记划拨来完成,则只要受益人银行接受了支付命令,将按同样 数额支付现金来偿付该债务,该债务即告清偿。015(:Г . СЕЫЕКАЬ А/СЫ.9/384 19 ЫоуетЬег 1993 СН1ЫЕ5Е 0К1С1ЫАЬ: ЕЫСЫ5Н 联合国国际贸易法委员会 第二十七届会议 1994年 5月3 1曰至 6月1 7曰,纽约 贸易法委员会国际贷记划拨示范法 秘书处的说明*
Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14导言
iiiPage A. Funds transfers in general 14 B. Unification of the law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 C. Scope of application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 1. Categories of transactions covered by Model Law 16 2. Portions of an international credit transfer. . . . . . . . . . . . . . . . . . . . 17 D. Extent to which Model Law is mandatory. . . . . . . . . . . . . . . . . . . . . . . 18 E. Salient features of the Model Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 1. Obligations of sender of payment order. . . . . . . . . . . . . . . . . . . . . . 181 .联合国国际贸易法委员会(贸易法委员会)于1992年通过的贸易法委员
2. Sender's payment to receiving bank. . . . . . . . . . . . . . . . . . . . . . . . . 19会国际贷记划拨示范法是为了应付国际资金划拨的手段发生巨大变化而制订的。 这一变化涉及两个方面:更多地使用电子手段的支付命令而不是纸面的支付命令, 从普遍使用借记划拨转变到普遍使用贷记划拨。 一个结果是,以前企图统一国 际借记划拨法律的努力巳不能适应于资金划拨的新技术。 示范法通过制订一个 能满足现代资金划拨技术需要的条文,提供了统一贷记划拨法律的机会。 * 联合国国际贸易法委员会(贸易法委员会)准备的这份说明只是作为介绍情 况 ,而不是对示范法的正式评论。 秘书处对原先示范法草案的评注载于 А/СЫ.9/346文件 (重刊于贸易法委员会年鉴第二十二卷,1 " 1年 )。 V.93-90403 222 联 合 大 会А/СЫ.9/384 Ра§е 2 一 . 资金划拨的一般情况 2 .一直到七十年代中期,人们想向另一个国家划拨资金,不论是支付债务 还是为自己在该外国提供资金,人们所能采用的办法是有限的。 他可以向收款 人寄送自己的个人或公司支票,然而这类项目的国际托收既速度缓慢又费用昂贵с 他可以从其银行购买一张由该银行代表其在接受国的代理银行开出的汇票。 此 类国际银行汇票的托收要快于个人或公司支票的托收,因为这种汇票可在接受国 支付并以接受国的资金付款。
3. Obligations of receiving bank . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203 .从十九世纪中期开始出现第三种甚至更为迅速的方法。 发端人银行可
4. Bank's liability for failure to perform one of its obligations. . . . . 22以以电报向其在接受国的代理银行发出支付命令,指示接收银行向预定受款人付
5. Completion of credit transfer and its consequences. . . . . . . . . . . . . 23款。 (支付命令也可以在银行间以书面形式传递。 这是许多国家进行资金划
ivUNCITRAL Model Law拨的普遍办法。 但在国际划拨中不常使用。 )虽然比其他两种方法速度快,然
on International Credit Transfers而电报是一种花费较高的通信手段并容易出差错。 当电传代替电报时,基本的
CHAPTER I. GENERAL PROVISIONS*银行交易仍然不变,但是成本降低了,准确度提高了。 这导致国际支付逐渐不
Article 1. Sphere of application**使用银行支票。 随着七十年代中期各银行之间实行计算机联网化,成本进一步
(1) This law applies to credit transfers where any sending bank and its下降,而速度和准确度却大大提高了。 由于越来越多的国家广泛采用银行间计
receiving bank are in different States.算机联网通信,使用银行支票进行国际资金划拨已急剧减少,电传划拨的作用也
(2) This law applies to other entities that as an ordinary part of their business engage in executing payment orders in the same manner as it applies to大为下降。
banks.4 .银行支票托收、电传划拨以及新出现的计算机对计算机的划拨都有一个
(3) For the purpose of determining the sphere of application of this law,重要的共同点:人发端人到受益人的价值划拨是通过借记发端人的银行帐户以及
branches and separate offices of a bank in different States are separate banks.贷记受益人的银行帐户得以实现的。 银行间的结算也是通过借记和贷记相应帐
Article 2. Definitions户得以完成的。 这些帐户可以开立在有关银行之间或第三者银行,包括一个或
For the purposes of this law:两个国家的中央银行。
(a) "Credit transfer" means the series of operations, beginning with5 .银行支票托收(或个人或公司支票托收)与电传或计算机间的划拨也存
the originator's payment order, made for the purpose of placing funds at the在显著区别。 支票是通过邮政或银行业务渠道以外的其他途径传送的。因此,
disposal of a beneficiary. The term includes any payment order issued by the托收支票的银行业务手续要收资金划拨受益人签字。 由资金划拨受益人开始办
originator's bank or any intermediary bank intended to carry out the originator's payment order. A payment order issued for the purpose of effecting理银行手续的资金划拨越来越经常地被称之为借记划拨。 汇票或本票的托收也
*The Commission suggests the following text for States that might wish to adopt it:是一种借记划拨,因为资金划拨的受益人提出资金划拨,以及还有其它的借记划
Article Y. Conflict of laws拨技术,包括有些依赖于计算机的技术。
(1) The rights and obligations arising out of a payment order shall be governed by the law6 .在电传划拨和计算机对计算机划拨中,开始办理银行手续的是资金划拨
chosen by the parties.的发端人,他向其银行发出付款命令,借记自己的帐户以及贷记受益人帐户。以А/СИ.
In the absence of agreement, the law of the State of the receiving bank9/384
shall apply.Ра§е 3
(2) The second sentence of paragraph (1) shall not affect the determination of which law资金划拨的发端人开始办理银行手续的资金划拨往往被称为贷记划拨,示范法所
governs the question whether the actual sender of the payment order had the authority to bind使用的就是这个词。
the purported sender.二 .法律的统一
(3) For the purposes of this article:7 由于因支票和汇票托收而产生的借记划拨在国际上广泛使用,人们一直
(a) where a State comprises several territorial units having different rules of law, each在作各种不同努力以统一流通票据及其托收业务的法律。1 反过来说,对于统
territorial unit shall be considered to be a separate State;一国际上使用纸面和电传贷记划拨业务的法律,直到最近人们一直兴趣不大。
(b) branches and separate offices of a bank in different States are separate banks.8 . 1975年当第一个国际银行间计算机对计算机电文系统投入使用时,形势
**This law does not deal with issues related to the protection of consumers.开始起变化。 目前,商业或消费用途的电子资金划拨系统已在许多国家开始出
1payment for such an order is considered to be part of a different credit现。 由于不清楚支配方面资金划拨的规则是否应该或将全部或部分适用于电子
transfer;资金划拨,贸易法委员会的第一件事就是制订贸易法委员会电子资金划拨法律指
(b) "Payment order" means an unconditional instruction, in any form,南(А/С19/5ЕК.В/1,5а1ез №.Е87.У.9)。 法律指南对从纸面资金划拨转到电
by a sender to a receiving bank to place at the disposal of a beneficiary a子资金划拨过程中一定会碰到的问题进行了探讨。 由于法律指南的重点是从纸
fixed or determinable amount of money if面形式改为电子手段所产生的问题,它既讨论了借记划拨,也讨论了贷记划拨。
(i) the receiving bank is to be reimbursed by debiting an account9 贸易法委员会于1986年批准出版法律指南时,它同时还决定制订示范法
of, or otherwise receiving payment from, the sender, and律规则以便“影响’’管辖资金划拨新手段的各国实践和法律。 因此决定,示范
(ii) the instruction does not provide that payment is to be made法规应以示范法的形式通过,而且起草示范法应着眼于由各国颁布执行。
at the request of the beneficiary.1 迄今为止最成功的是国际联盟于1930年和1931年通过的《汇票与本票统一法》
Nothing in this paragraph prevents an instruction from being a payment order以及 《支票统一法》。 较近的一次努力成果就是《联合国国际汇票与国际
merely because it directs the beneficiary's bank to hold, until the beneficiary本票公约》 ,该公约由贸易法委员会拟定并由联合国大会于1988年通过。贸
requests payment, funds for a beneficiary that does not maintain an account易法委员会公约是为国际贸易中自由选择使用而设计的(有关该公约的资料,
with it;见А/СЫ.9/386中的说明)。 为补充政府间的工作,国际商会拟订了《托收
(c) "Originator" means the issuer of the first payment order in a credit的统一规则》 (国际商会3 2 2号出版物),该规则已被1 3 0多个国家和地区
transfer;的银行釆用来管理银行的国际汇票托收业务。 起草本文时, 《托收统一规
(d) "Beneficiary" means the person designated in the originator's则》正在进行修改。А/СЫ.9/384
payment order to receive funds as a result of the credit transfer;Ра^е 4
(e) "Sender" means the person who issues a payment order, including三.适用范围
the originator and any sending bank;А .《示范法》管辖的交易种类
if) "Receiving bank" means a bank that receives a payment order;1 0 .如其名称所示,与 《法律指南》相反, 《示范法》适用于贷记划拨。尽
(g) "Intermediary bank" means any receiving bank other than the originator's bank and the beneficiary's bank; (h) "Funds" or "money" includes credit in an account kept by a bank and includes credit denominated in a monetary unit of account that is established by an intergovernmental institution or by agreement of two or more States, provided that this law shall apply without prejudice to the rules of the intergovernmental institution or the stipulations of the agreement; (i) "Authentication" means a procedure established by agreement to determine whether a payment order or an amendment or revocation of a payment order was issued by the person indicated as the sender; (j) "Banking day" means that part of a day during which the bank performs the type of action in question; (k) "Execution period" means the period of one or two days beginning on the first day that a payment order may be executed under article 11(1) and ending on the last day on which it may be executed under that article; (1) "Execution", in so far as it applies to a receiving bank other than the beneficiary's bank, means the issue of a payment order intended to carry out the payment order received by the receiving bank; (m) "Interest" means the time value of the funds or money involved, which, unless otherwise agreed, is calculated at the rate and on the basis customarily accepted by the banking community for the funds or money involved. 2Article 3. Conditional instructions (1) When an instruction is not a payment order because it is subject to a condition but a bank that has received the instruction executes it by issuing an unconditional payment order, thereafter the sender of the instruction has the same rights and obligations under this law as the sender of a payment order and the beneficiary designated in the instruction shall be treated as the beneficiary of a payment order. (2) This law does not govern the time of execution of a conditional instruction received by a bank, nor does it affect any right or obligation of the sender of a conditional instruction that depends on whether the condition has been satisfied. Article 4. Variation by agreement Except as otherwise provided in this law, the rights and obligations of parties to a credit transfer may be varied by their agreement. CHAPTER n. OBLIGATIONS OF THE PARTIES Article 5. Obligations of sender (1) A sender is bound by a payment order or an amendment or revocation of a payment order if it was issued by the sender or by another person who had the authority to bind the sender. (2) When a payment order or an amendment or revocation of a payment order is subject to authentication other than by means of a mere comparison of signature, a purported sender who is not bound under paragraph (1) is nevertheless bound if (a) the authentication is in the circumstances a commercially reasonable method of security against unauthorized payment orders, and (b) the receiving bank complied with the authentication. (3) The parties are not permitted to agree that a purported sender is bound under paragraph (2) if the authentication is not commercially reasonable in the circumstances. (4) A purported sender is, however, not bound under paragraph (2) if it proves that the payment order as received by the receiving bank resulted from the actions of a person other than (a) a present or former employee of the purported sender, or (b) a person whose relationship with the purported sender enabled that person to gain access to the authentication procedure. 3The preceding sentence does not apply if the receiving bank proves that the payment order resulted from the actions of a person who had gained access to the authentication procedure through the fault of the purported sender. (5) A sender who is bound by a payment order is bound by the terms of the order as received by the receiving bank. However, the sender is not bound by an erroneous duplicate of, or an error or discrepancy in, a payment order if (a) the sender and the receiving bank have agreed upon a procedure for detecting erroneous duplicates, errors or discrepancies in a payment order, and (b) use of the procedure by the receiving bank revealed or would have revealed the erroneous duplicate, error or discrepancy. If the error or discrepancy that the bank would have detected was that the sender instructed payment of an amount greater than the amount intended by the sender, the sender is bound only to the extent of the amount that was intended. Paragraph (5) applies to an error or discrepancy in an amendment or a revocation order as it applies to an error or discrepancy in a payment order. (6) A sender becomes obligated to pay the receiving bank for the payment order when the receiving bank accepts it, but payment is not due until the beginning of the execution period. Article 6. Payment to receiving bank For the purposes of this law, payment of the sender's obligation under article 5(6) to pay the receiving bank occurs (a) if the receiving bank debits an account of the sender with the receiving bank, when the debit is made; or (b) if the sender is a bank and subparagraph (a) does not apply, (i) when a credit that the sender causes to be entered to an account of the receiving bank with the sender is used or, if not used, on the banking day following the day on which the credit is available for use and the receiving bank learns of that fact, or (ii) when a credit that the sender causes to be entered to an account of the receiving bank in another bank is used or, if not used, on the banking day following the day on which the credit is available for use and the receiving bank learns of that fact, or (iii) when final settlement is made in favour of the receiving bank at a central bank at which the receiving bank maintains an account, or 4(iv) when final settlement is made in favour of the receiving bank in accordance with a. the rules of a funds transfer system that provides for the settlement of obligations among participants either bilaterally or multilaterally, or b. a bilateral netting agreement with the sender; or (c) if neither subparagraph (a) nor (b) applies, as otherwise provided by law. Article 7. Acceptance or rejection of a payment order by receiving bank other than the beneficiary's bank (1) The provisions of this article apply to a receiving bank other than the beneficiary's bank. (2) A receiving bank accepts the sender's payment order at the earliest of the following times: (a) when the bank receives the payment order, provided that the sender and the bank have agreed that the bank will execute payment orders from the sender upon receipt; (b) when the bank gives notice to the sender of acceptance; (c) when the bank issues a payment order intended to carry out the payment order received; (d) when the bank debits an account of the sender with the bank as payment for the payment order; or (e) when the time for giving notice of rejection under paragraph (3) has elapsed without notice having been given. (3) A receiving bank that does not accept a payment order is required to give notice of rejection no later than on the banking day following the end of the execution period, unless: (a) where payment is to be made by debiting an account of the sender with the receiving bank, there are insufficient funds available in the account to pay for the payment order; (b) where payment is to be made by other means, payment has not been made; or (c) there is insufficient information to identify the sender. (4) A payment order ceases to have effect if it is neither accepted nor rejected under this article before the close of business on the fifth banking day following the end of the execution period. 5Article 8. Obligations of receiving bank other than the beneficiary's bank (1) The provisions of this article apply to a receiving bank other than the beneficiary's bank. (2) A receiving bank that accepts a payment order is obligated under that payment order to issue a payment order, within the time required by article 11, either to the beneficiary's bank or to an intermediary bank, that is consistent with the contents of the payment order received by the receiving bank and that contains the instructions necessary to implement the credit transfer in an appropriate manner. (3) A receiving bank that determines that it is not feasible to follow an管是由于电子贷记划拨方法的突飞猛进的发展而产生了对示范法的需要,但 《示
instruction of the sender specifying an intermediary bank or funds transfer范法》不局限于计算机对计算机或其他电子技术的贷记划拨。 许多国内和国际
system to be used in carrying out the credit transfer, or that following such的贷记划拨开始都由发端人向其银行发出纸面支付命令,随后就是电子形式的银
an instruction would cause excessive costs or delay in completing the credit行间支付命令。 因此要给电子贷记划拨下一定义是困难的,也是徒劳无功的。
transfer, shall be taken to have complied with paragraph (2) if, before the end解决一些法律问题的适当办法似乎要看支付命令是电子形式还是书面形式。 针
of the execution period, it inquires of the sender what further actions it对这些情形草拟了有关规则。
should take.1 1 .很多贷记划拨只需要发端人银行和受益人银行的服务,另一些贷记划拨
(4) When an instruction is received that appears to be intended to be a则需要一个或几个中间银行的服务。 在此情况下,贷记划拨是从发端人向发端
payment order but does not contain sufficient data to be a payment order, or人银行发出支付命令开始的,接着由发端人银行向中间银行发出支付命令,再由
being a payment order it cannot be executed because of insufficient data, but中间银行向受益人银行发出支付命令。 贷记划拨还要求三个发送人各自向其受
the sender can be identified, the receiving bank shall give notice to the sender益人银行付款。 如第2(а)条所述,贷记划拨,亦即易受《示范法》支配的交易,
of the insufficiency, within the time required by article 11.包 括 “由发端人的支付命令开始,为将资金交由某一受益人支配而进行的一系列
(5) When a receiving bank detects that there is an inconsistency in the业务活动”。
information relating to the amount of money to be transferred, it shall, within1 2 . 《示范法》本身规定,它的适用范围只限于国际贷记划拨。 作出此决
the time required by article 11, give notice to the sender of the inconsist~ncy,定的部分原因是为了确认:成立贸易法委员会是为了统一支配国际贸易的法律。
if the sender can be identified. Any interest payable under article 17(4) for另外一个原因是,所有国家在进行国际贷记划拨中基本上都面临相同的法律与实
failing to give the notice required by this paragraph shall be deducted from践上的问题,而进行国内贷记划拨所处的环境却大相径庭。
any interest payable under article 17(1) for failing to comply with paragraph1 3 .第一条阐明确定贷记划拨是否具有国际性,亦即确定其是否受《示范法》
(2) of this article.支配的标准,是看贷记划拨中的发送银行和接收银行是否在不同国家。 只要发
(6) For the purposes of this article, branches and separate offices of a bank,送和接受银行在不同的国家,则贷记划拨的各个方面都属于《示范法》范围之内。
even if located in the same State, are separate banks.1 4 . 虽然有些国家的国内贷记划拨方法与国际贷记划拨所用的方法差别极大,
Article 9. Acceptance or rejection of a payment order委员会承认, 《示范法》中没有任何实质性规则是只适用于国际贷记划拨的。所
by beneficiary's bank以有些国家似可采用示范法同时指导其国际贷记划拨和国内贷记划拨,以此确保
(1) The beneficiary's bank accepts a payment order at the earliest of the法律的统一。 为此目的,只需要改变一下第一条所述的适用范围。
following times:1 5 贷记划拨可能不仅企业要用于商务目的同而且个人也可能用于私人目的。
(a) when the bank receives the payment order, provided that the sender and the bank have agreed that the bank will execute payment orders from— 些国家有管理贷记划拨某些方面的消费者保护法。 第一条的脚注承认,任何А/СЫ.9/384
the sender upon receipt;Ра^е 5
(b) when the bank gives notice to the sender of acceptance;这类消费者保护法可优先于《示范法》的条款。 如果某个人是贷记划拨的发端
6(c) when the bank debits an account of the sender with the bank as人或受益人,除任何可以适用的消费者保护法之外,其权利和义务亦受《示范法》
payment for the payment order;支配。
(d) when the bank credits the beneficiary's account or otherwise placesв.国际贷记划拨的各部分
the funds at the disposal of the beneficiary;1 6 一旦决定《示范法》的拟定应适用整个“......为将资金交由某一受益人
(e) when the bank gives notice to the beneficiary that it has the right支配而进行的一系列业务活动” ,而不仅仅适用于从一个国家的某一银行送到另
to withdraw the funds or use the credit;一国家的某个银行的支付命令, 就有必要来决定是否某一国际贷记划拨的每一
(f) when the bank otherwise applies the credit as instructed in the方面都应受某个特定国家颁布的《示范法》的支配。 有关各方都承认,这样的
payment order;结果是理想的,因为这会确保某一个国家的法律适用于整个贷记划拨。 曾经有
(g) when the bank applies the credit to a debt of the beneficiary owed人建议,《示范法》中应该包括一条能起这种作用的规则。 贸易法委员会决定,
to it or applies it in conformity with an order of a court or other competent这样一条规则尽管理论上很理想,但无论从技术上还是政治上都是行不通的。因
authority; or此,贸易法委员会同意:贷记划拨中的每一项业务活动都要受适用于该业务的法
(h) when the time for giving notice of rejection under paragraph (2)律的支配。 当然,大家希望《示范法》被广泛采纳以便某一贷记划拨中的不同
has elapsed without notice having been given.业务活动会受同一法律制度的支配。
(2) A beneficiary's bank that does not accept a payment order is required1 7 .在整个制订《示范法》期间,贸易法委员会执行了自己的决定,即 :贷
to give notice of rejection no later than on the banking day following the end记划拨中的每一项业务活动都受适用于该项业务活动的法律支配,为此而拟定了
of the execution period, unless:一条法律冲突条文。 该条充许各方选择适用于他们关系的法律。这种选择往往
(a) where payment is to be made by debiting an account of the sender写入贷记划拨之前就已达成的协议之内。 在没有协议的情况下,接收银行所在
with the beneficiary's bank, there are insufficient funds available in the account to pay for the payment order;的国家法律将适用于由于该银行收到的支付命令而引起的权利和义务。
(b) where payment is to be made by other means, payment has not1 8 . 1992年通过示范法的会议决定从示范法的正文中取消法律冲突的条文。
been made; or但在示范法第一章的脚注中列出了该条文“供各国选择釆用”。
(c) there is insufficient information to identify the sender.四 . 示范法的强制性程度
(3) A payment order ceases to have effect if it is neither accepted nor1 9 .第 4条规定 “除本法另有规定外,贷记划拨各当事方的权利与义务可经
rejected under this article before the close of business on the fifth banking由各当事方的协议加以改动’’。 这一简单的句子体现三层含义:
day following the end of the execution period.一 原 则 上 , 《示范法》并不是强制性法律。 贷记划拨各当事方可以
Article 10. Obligations of beneficiary's bank通过协议方式变动其权利与义务。
(1) The beneficiary's bank is, upon acceptance of a payment order, obligated to place the funds at the disposal of the beneficiary, or otherwise to- 协议必须是权利与义务受到影响的各当事方之间的协议。 这意味着,比如说,与它们间交易有关的一批银行可以订立协议修改它们
apply the credit, in accordance with the payment order and the law governing按 《示范法》规定而产生的权利与义务。 然而这一协议不会影响
the relationship between the bank and the beneficiary.银行客户的权利与义务,除非客户也同意同样修改自己的权利与义
(2) When an instruction is received that appears to be intended to be a务。 这条规则在第12(9)和第14(6)条款中有所改动,这两条都规
payment order but does not contain sufficient data to be a payment order, or定, 《示范法》中有关在某些限定情况下退款方式的具体段落“不
being a payment order it cannot be executed because of insufficient data, but适用于该银行,如果它们会影响该银行根据任何协议或一个资金划
the sender can be identified, the beneficiary's bank shall give notice to the拨系统的任何规定而产生的权利或义务”。
sender of the insufficiency, within the time required by article 11.- 各当事方的某些权利与义务不能经由协议作出了改变,或者只有在
(3) When the beneficiary's bank detects that there is an inconsistency in the限定范围内或在限定情况下作出改变。 第5(3)、14(2)和17(7)条
information relating to the amount of money to be transferred, it shall, within款中可找到这些具体规定。
the time required by article 11, give notice to the sender of the inconsistency五 《示范法》的显著特点
if the sender can be identified.А 支付命令发送人的义务
7(4) When the beneficiary's bank detects that there is an inconsistency in the2 0 . — 项支付命令的发送人可以是贷记划拨的发端人,因为发端人把支付命
information intended to identify the beneficiary, it shall, within the time令送到发端人银行,或者可以是一家银行,因为除受益人银行以外,贷记划拨过
required by article 11, give notice to the sender of the inconsistency if the程中的每个银行都必须把自己的支付命令发送到贷离划拨过程中的下一个银行。
sender can be identified.2 1 .第5(6)条规定了发送人的一项真正义务,即 “当接受银行接受了支付命
(5) Unless the payment order states otherwise, the beneficiary's bank shall,令时,发送人即有义务就所发支付命令向报收银行付款”。 对于写明一个未来
within the time required for execution under article 11, give notice to a执行曰期的支付命令,有一个特别规定,在此情况下,当接收银行接受支付命令
beneficiary who does not maintain an account at the bank that it is holding时才产生支付义务, “但是在执行期开始前不应付款。”
funds for its benefit, if the bank has sufficient information to give such2 2 .但如果对支付命令是否真正由写明为发送人的那个人发送的问题有疑问,
notice.怎么办呢?在纸面支付命令的情况下,如果指称名义发送人的签字是伪造的,就
Article 11. Time for receiving bank to execute payment order and give notices (1) In principle, a receiving bank that is obligated to execute a payment order is obligated to do so on the banking day it is received. If it does not, it shall do so on the banking day after the order is received. Nevertheless, if (a) a later date is specified in the payment order, the payment order shall be executed on that date, or (b) the payment order specifies a date when the funds are to be placed at the disposal of the beneficiary and that date indicates that later execution is appropriate in order for the beneficiary's bank to accept a payment order and execute it on that date, the order shall be executed on that date. (2) If the receiving bank executes the payment order on the banking day after it is received, except when complying with subparagraph (a) or (b) of paragraph (1), the receiving bank must execute for value as of the day of receipt. (3) A receiving bank that becomes obligated to execute a payment order by virtue of accepting a payment order under article 7(2)(e) must execute for value as of the later of the day on which the payment order is received and the day on which (a) where payment is to be made by debiting an account of the sender with the receiving bank, there are sufficient funds available in the account to pay for the payment order, or (b) where payment is to be made by other means, payment has been made. (4) A notice required to be given under article 8(4) or (5) or article 10(2), (3) or (4) shall be given on or before the banking day following the end of the execution period. (5) A receiving bank that receives a payment order after the receiving bank's cut-off time for that type of payment order is entitled to treat the order as having been received on the next day the bank executes that type of payment order. 8(6) If a receiving bank is required to perform an action on a day when it does not perform that type of action, it must perform the required action on the next day it performs that type of action. (7) For the purposes of this article, branches and separate offices of a bank, even if located in the same State, are separate banks. Article 12. Revocation (1) A payment order may not be revoked by the sender unless the revocation order is received by a receiving bank other than the beneficiary's bank at a time and in a manner sufficient to afford the receiving bank a reasonable opportunity to act before the later of the actual time of execution and the beginning of the day on which the payment order ought to have been executed under subparagraph (a) or (b) of article 11(1). (2) A payment order may not be revoked by the sender unless the revocation order is received by the beneficiary's bank at a time and in a manner sufficient to afford the bank a reasonable opportunity to act before the later of the time the credit transfer is completed and the beginning of the day when the funds are to be placed at the disposal of the beneficiary. (3) Notwithstanding the provisions of paragraphs (1) and (2), the sender and the receiving bank may agree that payment orders issued by the sender to the receiving bank are to be irrevocable or that a revocation order is effective only if it is received earlier than the time specified in paragraph (1) or (2). (4) A revocation order must be authenticated. (5) A receiving bank other than the beneficiary's bank that executes, or a beneficiary's bank that accepts, a payment order in respect of which an effective revocation order has been or is subsequently received is not entitled to payment for that payment order. If the credit transfer is completed, the bank shall refund any payment received by it. (6) If the recipient of a refund is not the originator of the credit transfer, it shall pass on the refund to its sender. (7) A bank that is obligated to make a refund to its sender is discharged from that obligation to the extent that it makes the refund direct to a prior sender. Any bank subsequent to that prior sender is discharged to the same extent. (8) An originator entitled to a refund under this article may recover from any bank obligated to make a refund hereunder to the extent that the bank has not previously refunded. A bank that is obligated to make a refund is 9discharged from that obligation to the extent that it makes the refund direct to the originator. Any other bank that is obligated is discharged to the same extent. (9) Paragraphs (7) and (8) do not apply to a bank if they would affect the bank's rights or obligations under any agreement or any rule of a funds transfer system. (10) If the credit transfer is completed but a receiving bank executes a payment order in respect of which an effective revocation order has been or is subsequently received, the receiving bank has such rights to recover from the beneficiary the amount of the credit transfer as may otherwise be provided by law. (11) The death, insolvency, bankruptcy or incapacity of either the sender or the originator does not of itself operate to revoke a payment order or terminate the authority of the sender. (12) The principles contained in this article apply to an amendment of a payment order. (13) For the purposes of this article, branches and separate offices of a bank, even if located in the same State, are separate banks. CHAPTER Ill. CONSEQUENCES OF FAILED, ERRONEOUS OR DELAYED CREDIT TRANSFERS Article 13. Assistance Until the credit transfer is completed, each receiving bank is requested to assist the originator and each subsequent sending bank, and to seek the assistance of the next receiving bank, in completing the banking procedures of the credit transfer. Article 14. Refund (1) If the credit transfer is not completed, the originator's bank is obligated to refund to the originator any payment received from it, with interest from the day of payment to the day of refund. The originator's bank and each subsequent receiving bank is entitled to the return of any funds it has paid to its receiving bank, with interest from the day of payment to the day of refund. (2) The provisions of paragraph (1) may not be varied by agreement except when a prudent originator's bank would not have otherwise accepted a particular payment order because of a significant risk involved in the credit transfer. 10(3) A receiving bank is not required to make a refund under paragraph (1) if it is unable to obtain a refund because an intermediary bank through which it was directed to effect the credit transfer has suspended payment or is prevented by law from making the refund. A receiving bank is not considered to have been directed to use the intermediary bank unless the receiving bank proves that it does not systematically seek such directions in similar cases. The sender that first specified the use of that intermediary bank has the right to obtain the refund from the intermediary bank. (4) A bank that is obligated to make a refund to its sender is discharged from that obligation to the extent that it makes the refund direct to a prior sender. Any bank subsequent to that prior sender is discharged to the same extent. (5) An originatorentitled to a refund under this article may recover from any bank obligated to make a refund hereunder to the extent that the bank has not previously refunded. A bank that is obligated to make a refund is discharged from that obligation to the extent that it makes the refund direct to the originator. Any other bank that is obligated is discharged to the same extent. (6) Paragraphs (4) and (5) do not apply to a bank if they would affect the bank's rights or obligations under any agreement or any rule of a funds transfer system. Article 15. Correction of underpayment If the amount of the payment order executed by a receiving bank is less than the amount of the payment order it accepted, other than as a result of the deduction of its charges, it is obligated to issue a payment order for the difference. Article 16. Restitution of overpayment If the credit transfer is completed, but the amount of the payment order executed by a receiving bank is greater than the amount of the payment order会出现这种问题。 在电子支付命令中,电文有可能是由未经授权的人发出的,
it accepted, it has such rights to recover the difference from the beneficiary但是通过密码,加密或类似手段的核证会是准确无误的。
as may otherwise be provided by law.2 3 . 《示范法》分三步回答了这个问题。 第一步在第5(1)条中作了阐述:
Article 17. Liability for interest“如果支付命令......系由发送人签发或由有权约束发送人的另一人签发,则发送
(1) A receiving bank that does not comply with its obligations under article 8(2) is liable to the beneficiary if the credit transfer is completed. The人应对该支付命令承担责任。”至于另一人事实上和法律上是否有权约束发送的
liability of the receiving bank is to pay interest on the amount of the payment问题则留给《示范法》以外的有关法律规定去解答。
order for the period of delay caused by the receiving bank's non-compliance.2 4 .第5(2)条中所述的第二步是最为重要的:
If the delay concerns only part of the amount of the payment order, theА/СИ.9/384
liability shall be to pay interest on the amount that has been delayed.ра§е 6А/СЫ.9/384
11(2) The liability of a receiving bank under paragraph (1) may be dischargedРа§е 7
by payment to its receiving bank or by direct payment to the beneficiary. If“如果支付命令......需要经过〔发送人和接受银行之间协议〕核证,名
a receiving bank receives such payment but is not the beneficiary, the receiving bank shall pass on the benefit of the interest to the next receiving bank义发送人在下列情况下应承担责任:
or, if it is the beneficiary's bank, to the beneficiary.(a) 该核证在这种情况下是防范未经授权的支付命令而采用的商业上合 理的核实方法,而且
(3) An originator may recover the interest the beneficiary would have been(b)接收银行遵循了核证程序。” 2 5 .这里是假定在电子支付命令情况下由接收银行来确定它准备采取的核证 程序。 因此,当核证程序并非最起码的“商业上合理’’核证时,银行就承担未
entitled to, but did not, receive in accordance with paragraphs (1) and (2) to经授权而发送支付命令的全部风险。 确定何为商业上合理将因时因地而异,取 决于所用的技术、与风险相比而言的技术费用以及可能运用于当时的其它诸多因
the extent the originator has paid interest to the beneficiary on account of a素。 第5(3)条款继续阐明,第5(2)条款表述了接收银行不能靠相反协议来避免 这一项义务。 然而,如果核证程序“仅是核对签字”,则第5(2)条并不适用,
delay in the completion of the credit transfer.在此情况下必须采用有关伪造签字行为后果的其它运用法律。 2 6.
The originator's bank and each如果核证程序是商业上合理的而且银行遵循了该程序,则名义发送人须
subsequent receiving bank that is not the bank liable under paragraph (1)对支付命令承担责任。 这反映了两种情况。 第一种是,银行无法区别核证是 否经过授权。 如果银行对巳正常核证过的支付命令却未经授权要承担风险,则
may recover interest paid to its sender from its receiving bank or from the银行就无法提供电子贷记划拨服务。 第二种情况是,如果核证程序是商业上合 理的而且银行能表明自己遵循了该程序,则可能就是发送人的过失,即未经受权
bank liable under paragraph (1).的什么人知道如何核证支付命令。
(4) A receiving bank that does not give a notice required under article 8(4)2 7 .这就引出了第5(4)条中所述的第三步分析。 发送人或接收银行,视情 况而定,要对巳有迹象表明因该方差错而发出的任何未经授权支付命令负责。关
or (5) shall pay interest to the sender on any payment that it has received于谁来承担举证责任,请参阅第5(4)条。
from the sender under article 5(6) for the period during which it retains theВ.发送人向接收银行付款
payment.2 8 .发端人在发端人银行没有帐户,发端人用现金向发端人银行支付贷记划
(5) A beneficiary's bank that does not give a notice required under article 10(2), (3) or (4) shall pay interest to the sender on any payment that it has拨金额和应交费用,这种情况特别在个人划拨中偶有发生。 但是在多数情况下,
received from the sender under article 5(6), from the day of payment until the发端人即发送人愿意在发端人银行即接收银行开立帐户。 发送银行愿意在接收 银行有帐户的事也时有发生。 在任何这种情况下,向接收银行的付款通常采用
day that it provides the required notice.借记发送人在接收银行开立的帐户的方式。 由于接收银行能够确定帐户中是否
(6) The beneficiary's bank is liable to the beneficiary to the extent provided by the law governing the relationship between the beneficiary and有足够的贷方余额或者确定它是否愿意在出现借方余额情况下向发送人提供信贷, 第6(а)条规定,完成借记即完成付款。А/СЫ.9/384 Ра§е 8 2 9 . 相反的情况也可能以生,即接收银行在发送银行开有帐户。 此外,发
the bank for its failure to perform one of the obligations under article 10(1) or (5).送银行和接收银行都可以在一个第三家银行开立帐户。 此时,发送银行可以视 情况或通过贷记接收银行的帐户或指示第三家银行贷记接收银行的帐户向接收银
(7) The provisions of this article may be varied by agreement to the extent行付款。 这两种情况的结果都是:接收银行在发送银行或第三方银行的贷方余 额增加了,同时贷记风险也更大。 一般说来,接收银行会接受这种做法。 但
that the liability of one bank to another bank is increased or reduced. Such是,有时贷记余额及其由此造成的贷记风险可能要超出接收银行愿意在发送银行 或第三方银行保存的范围。 因此,示范法在其第6(Ь)Н和о条中规定, “该贷
an agreement to reduce liability may be contained in a bank's standard terms记款被〔接收银行〕使用时,如未被使用,则在该贷记款可予使用以及接收银行 知悉该情况之日的下一个银行营业日时”付款即为发生。 换言之,如果接收银
of dealing. A bank may agree to increase its liability to an originator or行不使用贷记款而且不希望承担贷记风险,则接收银行只有很短的时间来通知发
beneficiary that is not a bank, but may not reduce its liability to such an送银行,说明它不接受付款。 3 0 .如果接收银行开有帐户的第三方银行是个中央银行,不管是该国还是别 国的中央银行,那么就没有贷记风险(至少在贷记款使用该中央银行货币时如此)。
originator or beneficiary.所以,第6(Ь)0条说,“当为接收银行作了最后结算时”付款即告完成。 3 1.
In particular, it may not reduce its liability by an向接收银行付款的第四种主要方法是发送银行应付款与其它支付命令产
agreement fixing the rate of interest.生的其它应付款的抵销结算。 这种抵销结算可以根据两家银行的双边抵销结算
Article 18. Exclusivity of remedies The remedies in article 17 shall be exclusive, and no other remedy arising out of other doctrines of law shall be available in respect of noncompliance with articles 8 or 10, except any remedy that may exist when a协议办理,还可以“根据参与者之间就其应付款项实行双边或多边结算的资金划
bank has improperly executed, or failed to execute, a payment order (a) with拨系统的规则”办理。如果抵销结算发生任何一种情况,第б(ь)(И)条规定, “当 根据”协议或规则“为接收银行作了最后结算时”即为就每一单独支付命令向各
the specific intent to cause loss, or (b) recklessly and with actual knowledge接收银行完成了付款。
that loss would be likely to result.3 2 .这里有一个问题须予注意。 在一个当事方丧失偿付能力情况下的抵销
12CHAPTER IV. COMPLETION OF CREDIT TRANSFER结算和抵销结算的后果是个有争议的问题。 这是国际结算银行一直在研究的课 题。 对于一个抵销结算协议在适用法律下是否有效,《示范法》不表明态度。 它所做的就是规定在存在一项有效的抵销结算协议时发送银行为某一单独支付命 令向接收银行付款的条件。 с.接收银行的义务 3 3 .接收银行的义务分为两种,一种是贷记划拨顺利完成情况下发生的义务, 另一种是出现差错时带来的义务。 银行收到的大多数支付命令都得以迅速执行 而且贷记划拨能顺利完成。 从真正的意义上说,这类贷记划拨中的接收银行从А/СК.9/384 Ра§е 9 未有过不履行支付命令的情况。 3 4 . 《示范法》在第8(2)和10(1) 条款中规定了接收银行有义务执行它所 “接受”的支付命令。 除受益人银行以外,接收银行的义务是签发一个能正常 执行所收受支付命令的支付命令。 受益人银行的义务是将资金交给受益人支配 。在接收银行“接受”支付命令前,它没有执行命令的义务。 有关什么时候接 收银行接受支付命令的规则,请阅第7(2)和9(1)条款。 3 5 在多数情况下,在并非受益人银行的接收银行为执行收到的支付命令而 签发自己的支付命令时,它就接受了支付命令。 在受益人银行贷记了受益人帐 户时它就接受了支付命令。 在这两种情况下,接收银行,不管它是否是受益人 银行,均已履行了它的主要义务。 但是,在执行所收到的支付命令前,接受银 行可以用其它方式接受支付命令。 3 6 有些资金划拨系统有个规定,即要求接收银行执行它从资金划拨系统的 其它成员收到的所有支付命令。 《示范法》规定,在此情况下接收银行即接受 了所收到的支付命令。
Article 19. Completion of credit transfer***3 7 以借记发送人帐户作为接收付款方式的接收银行或通知发送人表示接受
(1) A credit transfer is completed when the beneficiary's bank accepts a支付命令的接收银行一旦借记帐户或发出通知即为接受了支付命令。
payment order for the benefit of the beneficiary. When the credit transfer is3 8 接受支付命令的最后一种方法值得特别注意。 《示范法》的基本原则
completed, the beneficiary's bank becomes indebted to the beneficiary to是,收到支付命令和该命令款项的银行必须执行支付命令,否则必须发出拒绝通
the extent of the payment order accepted by it. Completion does not otherwise affect the relationship between the beneficiary and the beneficiary's知。 如果接收银行在要求时间内既没有执行支付命令又没有发出拒绝通知,该
bank.接收银行则被认为巳经接受了支付命令和有关义务。 第11条规定,正常情况下
(2) A credit transfer is completed notwithstanding that the amount of接收银行必须在收到支付命令后的第一个银行营业曰执行支付命令,并自收到之
the payment order accepted by the beneficiary's bank is less than the amount曰起计息。
of the originator's payment order because one or more receiving banks3 9 .在出现差错时接收银行也有相应义务。 有些支付命令或即将成为的支
have deducted charges. The completion of the credit transfer shall not付命令是有缺陷的。 收到的电文作为支付命令可能数据不够完整或者作为一项
prejudice any right of the beneficiary under the applicable law governing支付命令却由于数据不够而无法执行。 比如,一项支付命令同时以文字和数字
the underlying obligation to recover the amount of those charges from the表明拟划拨的金额,但出现了不一致的情况。 在确定受益人时可能出现同样情
originator.况,比如,姓名和帐号不一致。 凡出现数据资料不足,接收银行务必把问题告
***The Commission suggests the following text for States that might wish to adopt it:知发送人。 凡资料中出现不一致以及接收银行发现了这种不一致,接收银行也
If a credit transfer was for the purpose of discharging an obligation of the originator有责任通知发送人。
to the beneficiary that can be discharged by credit transfer to the account indicated by the4 0 .在接收银行发出自己相同的支付命令后,可能会出现其它义务。 国际
originator, the obligation is discharged when the beneficiary's bank accepts the payment order贷记划拨的完成可能被延误,而且无论是发端人还是受益人都不知道出了什么事。А/СЫ.9/384
and to the extent that it would be discharged by payment of the same amount in cash.Ра§е 10
13Explanatory note by the UNCITRAL secretariat on the为有助于应付这类情况,第13条规定,每个接收银行均应协助发端人,同时争取
UNCITRAL Model Law on International Credit Transfers*得到下一个接收银行的协助下,以期完成该贷记划拨的银行程序。
Introduction4 1 .如果贷记划拨没有完成,第14(1)条规定, “发端人银行有义务将其收
1. The UNCITRAL Model Law on International Credit Transfers, adopted by the到的、发端人已支付的任何款项,连同自支付日至退款日应有之利息,退给发端
United Nations Commission on International Trade Law (UNCITRAL) in 1992, was人。”发端人银行反过来也能连同利息收回它向接收银行的付款,而该银行亦能
prepared in response to a major change in the means by which funds transfers are从其接收银行收回款项。 退款的责任链到未能完成贷记划拨的银行为止。
made internationally.4 2.
This change involved two elements: the increased use of payment orders sent by electronic means rather than on paper, and the shift from the在实践中,退款链也许终止于未能完成贷记划拨的银行的前一家银行。
generalized use of debit transfers to the generalized use of credit transfers. One由于接收银行在其执行所收到支付命令之前已丧失偿付能力,或者由于国家禁止
result was that previous efforts to unify the law governing international debit transfers were not relevant to the new funds transfer techniques. The Model Law offers这类有争议的划拨或者由于战争或由于接收银行所在国的不稳定局面,贷记划拨
the opportunity to unify the law of credit transfers by enacting a text that is drafted可能无法进行。 在这些情况下,造成无法完成贷记划拨的原因同样可以使银行
to meet the needs of modern funds transfer techniques.无法向其发送银行退款。 有时,使用某一特定的银行或某一特定国家的数家银
A. Funds transfers in general行要冒风险,这个事实是显而易见的。 在此情况下,银行、特别是发端人银行
2. Until the mid-1970s a person who wished to transfer funds to another country,可以拒绝接受支付命令, 除非发送人指示该银行使用某一特定的中间银行去完成
whether to pay an obligation or to provide itself with funds in that foreign country,贷记划拨。凡接收银行得到指示须使用某一特定中间银行但由于该中间银行已停
had a limited number of ways in which to proceed. It could send its own personal止付款或由于法律不允许退款而无法从中间银行得到退款时,则该接收银行无需
or corporate cheque to the intended recipient of the funds, but international collection of such items was both slow and expensive. It could purchase from its bank a向其发送人退款。 但是,为了确保这种特殊情况不会被用来作为违反退款义务
draft drawn by the bank on the bank's correspondent in the receiving country.的借口,接收银行在任何情况下都负有退款的义务,如果它对于贷记划拨中应使
Collection of such an international bank draft was faster than collection of a personal用的银行而一贯地寻求发送人指示的话。
or corporate cheque since it was payable in the receiving country and in the fundsР.银行对未履行某项义务的应负责任
of the receiving country.4 3 .在家巳经注意到,如果贷记划拨未能完成,发端人银行将划拨金额和利
3. A third and even faster procedure had also been available since the midnineteenth century. The originator's bank could send a payment order by telegraph息退还给发端人。 所谓的“退款担保”属于赔偿性质而不是对未能履行义务的
to its correspondent bank in the receiving country instructing the receiving bank to应负责任的担保。
pay the intended recipient of the funds. (The payment order could also be transmitted between the banks on paper. This is the common method for making funds4 4 .对贷记划拨交易作进一步分析后情况很清楚,如果贷记划拨已经完成,
transfers in many countries. However, it was less commonly used for international银行可能发生的唯一错误就是延误了贷记划拨的完成。 不管哪家接收银行造成
transfers.) While faster than the other two methods, the telegraph was a relatively的延误,都将在预定的时间借记发端人帐户,但是贷记受益人帐户的时间要迟于
expensive method of communication and it was prone to error. When telex replaced预定时间。 因此,《示范法》在第17(1)条中规定,接收银行对延误负有向受
the telegraph, the basic banking transaction remained the same, but the cost was益人赔偿的责任。 即使受益人在贷记划拨链中除受益人银行外与任何其它银行
*This note has been prepared by the secretariat of the United Nations Commission on没有契约关系,上述规定仍然有效。
International Trade Law (UNCITRAL) for informational purposes only; it is not an official4 5 .银行对造成的延误所负的责任是支付利息。 目前许多贷记划拨协议的А/СМ.9/384
commentary on the Model Law. A commentary prepared by the secretariat on an earlier draftРа§е 11
of the Model Law appears in NCN.91346, reproduced in UNCITRAL Yearbook, vol. XXII:惯例是,延误执行所收到支付命令的银行要签发一项包括划拨金额和适当延误利
1991 (United Nations publication, Sales No. E.93.V.2).息的支付命令。 如果银行这么做了,则其接收银行有责任将该利息转交受益人。
14reduced and accuracy improved. That led to a gradual movement away from the use由于延误银行已向受益人作出了补偿,因此它已履行了自己的赔偿义务。 如果
of bank cheques for international payments. With the introduction of computer-tocomputer inter-bank telecommunications in the mid-1970s, the cost dropped still没有按第17条规定将利息转交给受益人,则受益人直接有权从扣留利息的银行要
further, while speed and accuracy improved dramatically. The extension ofcomputerto-computer inter-bank telecommunication facilities to ever increasing numbers of回利息。
countries means that the use of bank cheques for international funds transfers has4 6 . 如果贷记划拨的目的是为了偿还发端人所欠受益人的债务,受益人可能
drastically decreased and the role of telex transfers has been significantly reduced.已经从发端人收回延误偿还债务的利息。 在此情况下,第17(3) 条允许发端人
4. The collection of bank cheques, telex transfers and the newer computer-tocomputer transfers have one important element in common: value is transferred from而不是受益人从延误银行收回利息。
the originator to the beneficiary by a debit to the bank account of the originator and4 7 . 除一种特殊情况外,第17条所述的收回利息的补救办法是专门授予发端
a credit to the bank account of the beneficiary. Settlement between the banks is also人或受益人的。 按其它法律原则可以存在的其它补救办法均不能允许。 根据
accomplished by debits and credits to appropriate accounts. Those accounts may be第18条,一个例外就是由于下列各原因而没有执行支付命令,或执行命令不当:
maintained between the banks concerned or with third banks, including the central“( Ю 故意要造成损失,或(Ь)草率行事且实际上知道很可能造成损失。”在这
bank of one or both countries.些银行不良行为的非正常情况下,赔偿可以根据《示范法》以外的任何法律系统
5. There is also a striking difference between, on the one hand, the collection of中现有的法律原则进行。
a bank cheque (or the collection of a personal or corporate cheque) and, on the otherЕ.贷记划拨的完成及其后果
hand, a telex or computer-to-computer transfer. The cheque is transmitted to the4 8 根据第19条,“ 一项贷记划拨在受益人银行接受了划拨给受益人的支付
beneficiary by mail or other means outside banking channels. Therefore, the banking命令时即告完成。”此刻,银行系统巳经履行它对发端人的义务。 受益人银行
procedures to collect the cheque are initiated by the beneficiary of the funds transfer.如果此后没有正当行事,那就是受益人的事了。 《示范法》并未包括这种情况,
A funds transfer in which the beneficiary of the funds transfer initiates the banking而是留给调整帐户关系的法律去解决。
procedures is more and more often called a debit transfer.4 9.
Collection of a bill of第1 9 ( 1 )条进一步规定:“ 当贷记划拨完成时,受益人银行即有义务向
exchange or a promissory note is also a debit transfer, since the beneficiary of the受益人支付它所接受的支付命令的金额。” 《示范法》没有涉及受益人银行何时
funds transfer initiates the funds transfer, and there are other debit transfer techniques available, including some that are based on the use of computers.必须贷记受益人帐户或受益人银行何时必须提供资金这一问题。 这些事务都将
6. In telex transfers and computer-to-computer transfers it is the originator of the由管理帐户关系的有关法律去决定,包括受益人和受益人银行之间的契约安排。
funds transfer who begins the banking procedures by issuing a payment order to its5 0 .在许多贷记划拨中,发端人和受益人是同一个人;银行客户只是把资金
bank to debit its account and to credit the account of the beneficiary. A funds从一个银行转移到另一个银行。 在此情况下,贷记划拨的完成显然不会改变发
transfer in which the originator of the funds transfer initiates the banking procedures端人和受益人之间的法律关系。 贷记划拨的完成只改变作为发端人的客户与发
is often called a credit transfer, and that is the term used in the Model Law.端人银行之间的关系以及作为受益人的客户与受益人银行之间的关系。
B.5 1.
Unification of the law另一些贷记划拨是为了发端人向受益人偿还到期的债务。 贸易法委员
7.会的许多代表认为, 《示范法》应该规定:贷记划拨完成后即偿还了债务,其程А/СЫ.
As a result of the wide-spread international use of debit transfers arising out of9/384
the collection of cheques and bills of exchange, there have been several differentРа§е 12
efforts at unification of the law governing negotiable instruments and their collection.度与支付相同金额现金来偿还债务一样。 另外一些代表认为《示范法》不应包
1括这样的规定,因为他们认为这条有关偿还债务的规定是由于合同或其他原因而
Conversely, until recently there had been little interest in unifying the law产生的,不应包括在银行交易法中,或者不认为所建议的规则是正确的。 贸易
governing the international use of paper-based and telex credit transfers.法委员会最后作出的决定是将此规则放到第19条的脚注中“供各国选择采用”。
'The most successful to date have been the Unifonn Law on Bills of Exchange and若需要有关《示范法》的进一步资料,请按下列地址来函联系:
Promissory Notes and the Unifonn Law on Cheques, which were adopted by the League ofШС1ТКАЬ 5есге1;аг1а1
Nations in 1930 and 1931. A more recent effort is the United Nations Convention on International Bills of Exchange and International Promissory Notes, which was prepared byV I еппа 1п1егпа11опа1 Сеп1ге
UNCITRAL and adopted by the General Assembly in 1988.Р.
The UNCITRAL Convention is0_ Вох 500
designed for optional use in international trade (for infonnation on that Convention seeА-1400 VIеппа
explanatory note in NCN.9/386). To complement these intergovernmental efforts, the International Chamber of Commerce has fonnulated the Uniform Rules for Collections (ICCАиз1г5а
Publication No. 322), which have been adopted by banks in over 130 States and territories toТе1ех: 135612
govern the means by which banks collect drafts internationally. The Unifonn Rules for Collections are under revision at the time of writing. 158. The situation began to change in 1975 when the fIrst international inter-bank computer-to-computer message system came into service. Concurrently, electronic funds transfer systems for business or consumer use were beginning to appear in a number of countries. Since it was not clear whether the rules governing paper-based funds transfers should or would be applied to electronic funds transfers in whole or in part, UNCITRAL's fIrst effort was to prepare the UNCITRAL Legal Guide on Electronic Funds Transfers (AlCN.91SER.B/l, Sales No. E.87.V.9). The Legal Guide explored the legal issues that would have to be faced in moving from a paper-based to an electronic funds transfer system. Since the focus of the Legal Guide was on the impact of the shift from paper to electronics, it discussed both debit and credit transfers. 9. When UNCITRAL authorized the publication of the Legal Guide in 1986, it also decided to prepare model legal rules so as to "influence the development of' national practices and laws governing the newly developing means of making funds transfers. Subsequently, it was decided that the model legal rules should be adopted in the form of a model law, and that the model law should be drafted with a view to its adoption by States. C. Scope of application 1. Categories of transactions covered by Model lAw 10. As indicated by its title, and in contrast to the Legal Guide, the Model Law applies to credit transfers. It does not apply to debit transfers, even when made in electronic form. TheModel Law is not restricted to credit transfers made by computerto-computer or other electronic techniques, even though it was the explosive growth of electronic credit transfer systems that brought about the need for the Model Law. Many credit transfers, both domestic and international, begin with a paper-based payment order from the originator to its bank to be 'followed by an inter-bank payment order in electronic form. DefInition of an electronic credit transfer would, therefore, be diffIcult and unproductive. The appropriate solution for only a few legal issues seemed to depend on whether a payment order was in electronic or paper-based form. Appropriate rules have been drafted for those situations. 11. While many credit transfers require the services of only the originator's bank and the benefIciary's bank, other credit transfers require the services of one or more intermediary banks. In such a case the credit transfer is initiated by a payment order issued by the originator to the originator's bank, followed by payment orders from the originator's bank to the intermediary bank and from the intermediary bank to the benefIciary's bank. The credit transfer also requires payment by each of the three senders to its receiving bank. As expressed in article 2(a), a credit transfer, and therefore the transaction subject to the Model Law, includes the entire "series of operations, beginning with the originator's payment order, made for the purpose of placing funds at the disposal of a benefIciary". 12. The Model Law is by its own terms restricted to international credit transfers, In part that decision was taken in recognition of the fact that UNCITRAL was created to unify the law governing international trade. An additional reason was that, while all countries face essentially the same legal and practical problems in 16implementing international credit transfers, the circumstances in which domestic credit transfers are carried out vary significantly. 13. The criteria set out in article 1 to determine whether a credit transfer is international, and therefore subject to the Model Law, is whether any sending bank and any receiving bank in the credit transfer are in different States. Once there is a sending and a receiving bank in different States, every aspect of the credit transfer is within the scope of the Model Law. 14. Although the means of making domestic credit transfers in some countries vary significantly from the means used for international credit transfers, the Commission recognized that none of the substantive rules in the Model Law were appropriate only for international credit transfers. Therefore, some States might wish to adopt the Model Law to govern their domestic credit transfers as well as their international credit transfers, thereby assuring unity of the law. All that would be necessary would be to change the scope of application in article 1. 15. Credit transfers may be made by individuals for personal reasons as well as by businesses for commercial reasons. Some countries have special consumer protection laws that govern certain aspects of a credit transfer. The footnote to article 1 recognizes that any such consumer protection law may take precedence over the provisions in the Model Law. If an individual is an originator or a beneficiary of a credit transfer, its rights and obligations would be governed by the Model Law, subject to any consumer protection law that might be applicable. 2. Portions of an international credit transfer 16. Once it was decided that the Model Law should be drafted to apply to the entire "series of operations . . . made for the purpose of placing funds at the disposal of a beneficiary", and not just to the payment order that passed from a bank in one country to a bank in another country, it was necessary to decide whether every aspect of a given international credit transfer should be subject to the Model Law as enacted in a given country. It was recognized by all concerned that such a result would be desirable, since it would ensure the application of a single legal regime to the entire credit transfer. At one stage a proposal was made that a rule to that effect should be included in the Model Law. UNCITRAL decided that such a rule, although desirable in the abstract, was neither technically nor politically feasible. Therefore, it was accepted by UNCITRAL that each of the operations carried out in the credit transfer would be subject to the law applicable to that operation. It was hoped, of course, that the Model Law would be widely adopted so that the different operations in a given credit transfer would be subject to a consistent legal regime. 17. Throughout the period that the Model Law was in preparation UNCITRAL implemented its decision that each of the operations carried out in the credit transfer would be subject to the law applicable to that operation by means of an article on conflict of laws. That article allowed the parties to choose the law applicable to their relationship. Such a choice would probably be included in an agreement that preexisted the credit transfer in question. In the absence of an agreement, the law of the State of the receiving bank would apply to the rights and obligations arising out of the payment order sent to that bank. 1718. At the 1992 session when the Model Law was adopted, it was decided to delete the conflict-of-Iaws provision from the Model Law proper. However, the article was included in a footnote to Chapter I of the Model Law "for States that might wish to adopt it". D. Extent to which Model Law is mandatory 19. Article 4 provides that "Except as otherwise provided in this law, the rights and obligations of parties to a credit transfer may be varied by their agreement." This simple sentence embodies three propositions: In principle, the Model Law is not mandatory law. The parties to a credit transfer may vary their rights and obligations by agreement. The agreement must be between the parties whose rights and obligations are affected. That means, for example, that the agreement of a group of banks in regard to the transactions between them could modify the rights and obligations of those banks as they are set out in the Model Law. However, the agreement would have no effect on the rights and obligations of their customers, unless the customers had also agreed to such a modification of their rights and obligations. This rule is somewhat modified in articles 12(9) and 14(6), both of which provide that specific paragraphs in the Model Law governing the means of making a refund under certain limited circumstances "do not apply to a bank if they would affect the bank's rights or obligations under any agreement or any rule of a funds transfer system". Certain rights and obligations of the parties may not be varied by agreement, or may be varied only to a limited extent or under limited circumstances. Examples are to be found in articles 5(3), 14(2) and 17(7). E. Salient features of the Model Law 1. Obligations of sender ofpayment order 20. The sender of a payment order may be the originator of the credit transfer, since the originator sends a payme'nt order to the originator's bank, or it may be a bank, since every bank in the credit transfer chain, except the beneficiary's bank, must send its own payment order to the next bank in the credit transfer chain. 21. Article 5(6) sets out the one real obligation of a sender, Le., "to pay the receiving bank for the payment order when the receiving bank accepts it". There is a special rule for payment orders that contain a future execution date; in that case the obligation to pay arises when the receiving bank accepts the payment order, "but payment is not due until the beginning of the execution period". 22. But what if there is a question as to whether the payment order was really sent by the person who is indicated as being the sender? In the case of a paper-based payment order the problem would arise as the result of an alleged forged signature of the purported sender. In an electronic payment order, an unauthorized person may have sent the message but the authentication by code, encryption or the like would be accurate. 1823. The Model Law answers the question in three steps. The first step is described in article 5(1): "A sender is bound by a payment order ... if it was issued by the sender or by another person who had the authority to bind the sender." The question as to whether the other person did in fact and in law have the authority to bind the sender is left to the appropriate legal rules outside the Model Law. 24. The second step described in article 5(2) is the most important: "When a payment order ... is subject to authentication [by agreement between the sender and the receiving bank], a purported sender ... is ... bound if (a) the authentication is in the circumstances a commercially reasonable method of security against unauthorized payment orders, and (b) the receiving bank complied with the authentication." 25. The assumption is that, in the case of an electronic payment order, the receiving bank determines the authentication procedures it is prepared to implement. Therefore, the bank bears all the risk of an unauthorized payment order when the authentication procedures are not at a minimum "commercially reasonable". The determination of what is commercially reasonable will vary from time to time and from place to place depending on the technology available, the cost of implementing the technology in comparison with the risk and such other factors as may be applicable at the time. Article 5(3) goes on to say that article 5(2) states an obligation that the receiving bank cannot avoid by agreement to the contrary. Article 5(2) does not apply, however, when the authentication procedure is "a mere comparison of signature", in which case the otherwise applicable law on the consequences of acting on a forged signature must be applied. 26. If the authentication procedure was commercially reasonable and the bank followed the procedure, the purported sender is bound by the payment order. This reflects two judgments. The first is that the bank has no means to distinguish the authorized use of the authentication from the unauthorized use of the authentication. Banks would be unable to offer electronic credit transfers at an acceptable price if they bore the risk that payment orders that were properly authenticated were nevertheless unauthorized. The second is the judgment that if the authentication procedure is commercially reasonable and the bank can show that it followed the procedure, the chances are that it was the sender's fault that someone unauthorized learned how to authenticate the payment order. 27. That introduces the third step in the analysis as described in article 5(4). The sender or the receiving bank, as the case may be, would be responsible for any unauthorized payment order that could be shown to have been sent as a result of the fault of that party. For the rule as to who bears the burden of proof, see article 5(4). 2. Sender's payment to receiving bank 28. It happens, particularly in transfers by individuals, that an originator does not have an account with the originator's bank and that it pays the amount of the credit transfer plus the applicable fees to the originator's bank in cash. However, in most cases the originator, i.e., the sender, will have an account with the originator's bank. i.e., the receiving bank. It also often happens that a sending bank will have an account with the receiving bank. In any such case, payment to the receiving bank 19will normally be made by a debit to the account of the sender held by the receiving bank. Since the receiving bank is in a position to determine whether there is a sufficient credit balance in the account, or whether it is willing to extend credit to the sender to the extent of the resulting debit balance, article 6(a) provides that payment is made when the debit is made. 29. The reverse situation may also occur, that is, that the receiving bank maintains an account with the sending bank. Alternatively, both the sending bank and the receiving bank may maintain accounts with a third bank. Then the sending bank can pay the receiving bank by crediting the receiving bank's account or by instructing the third bank to credit the receiving bank's account, as the case may be. The result in either of those two situations is that the credit balance of the receiving bank with the sending bank or with the third bank is increased, with a concurrently larger credit risk. Normally that would be acceptable to the receiving bank. However, on occasion the credit balance, and the resulting credit risk, may be more than the receiving bank was willing to have with the sending bank or the third bank. Therefore, the Model Law provides in article 6(b)(i) and (ii) that payment takes place when the credit "is used [by the receiving bank] or, if not used, on the banking day following the day on which the credit is available for use and the receiving bank learns of that fact". In other words, if the receiving bank does not use the credit and does not wish to bear the credit risk, it has a short period of time to notify the sending bank that the payment is not acceptable to it. 30. When the third bank at which the receiving bank maintains an account is a central bank, whether the central bank of its country or of another country, there is no credit risk (at least when the credit is in the currency of the central bank). Therefore, article 6(b)(iii) says that the payment has been made "when final settlement is made in favour of the receiving bank". 31. A fourth principal means of paying the receiving bank is to net the obligation of the sending bank with other obligations arising out of other payment orders. The netting may be pursuant to a bilateral netting agreement between the two banks. The netting may also be pursuant to "the rules of a funds transfer system that provides for the settlement of obligations among participants either bilaterally or multilaterally". If netting takes place under any of these circumstances, article 6(b)(iv) provides that payment to the various receiving banks for each of the individual payment orders occurs "when final settlement is made in favour of the receiving bank in accordance with" the agreement or the rules. 32. A caveat should be entered at this point. Netting and the consequences of netting in case of the insolvency of one of the parties is a controversial matter. It is the subject of continuing study at the Bank for International Settlements. The Model Law does not take a position as to whether a netting agreement is valid or effective under the applicable law. All it does is to provide when a sending bank pays the receiving bank for an individual payment order where there is a valid netting agreement. 3. ObUgations of receiving bank 33. The obligations of a receiving bank are divided into the obligations that are part of a successful credit transfer and the obligations that arise when something goes wrong. Most payment orders that are received by a bank are executed promptly 20and the credit transfer is completed successfully. In a real sense, a receiving bank in such a credit transfer never has an unexecuted obligation in regard to the payment order. 34. The Model Law provides in articles 8(2) and 10(1) the obligations of a receiving bank to execute a payment order that it "accepts". The obligation of a receiving bank other than the beneficiary's bank is to issue a payment order that will properly implement the payment order received. The obligation of the beneficiary's bank is to place the funds at the disposal of the beneficiary. Until the receiving bank "accepts" the payment order, it has no obligation to execute it. The rules as to when a receiving bank accepts a payment order are in articles 7(2) and 9(1). 35. In most cases a receiving bank that is not the beneficiary's bank accepts a payment order when it issues its own payment order intended to carry out the payment order received. A beneficiary's bank accepts a payment order when it credits the account of the beneficiary. In those two situations the receiving bank, whether it is or is not the beneficiary's bank, undertakes its primary obligation and discharges that obligation by the same act. However, a receiving bank may accept a payment order in some other way before it executes the payment order received. 36. Some funds transfer systems have a rule that a receiving bank is required to execute all payment orders it receives from another member of the funds transfer system. The Model Law provides that in such a case the receiving bank accepts the payment order when it receives it. 37. A receiving bank that debits the account of the sender as the means of receiving payment or that notifies the sender that it accepts the payment order, accepts the payment order when it debits the account or gives the notice. 38. A final method of accepting a payment order deserves special attention. The philosophy of the Model Law is that a bank that receives a payment order and payment for it must either implement the payment order or give notice of rejection. If the receiving bank does neither within the required time, the receiving bank is deemed to have accepted the payment order and the associated obligations. Article 11 provides that normally the receiving bank must execute the payment order by the banking day after it is received and for value as of the day of receipt. 39. The receiving bank also has obligations when something goes wrong. Some payment orders, or would-be payment orders, are defective. A message received may contain insufficient data to be a payment order or, being a payment order, it cannot be executed because of insufficient data. For example, a payment order that expresses the amount of money to be transferred in two different ways, such as in words and in figures, may indicate the amount in an inconsistent manner. The same thing may occur in identifying the beneficiary, for example, by name and by account number. Where there is insufficient data, the receiving bank is obligated to notify the sender of the problem. Where there is an inconsistency in the data and the receiving bank detects the inconsistency, the receiving bank is also obligated to notify the sender. 40. Other obligations may arise after the receiving bank has issued its own conforming payment order. Completion of an international credit transfer may be delayed and neither the originator nor the beneficiary knows what has happened. To 21help in such situations article 13 provides that each receiving bank is requested to assist the originator and to seek the assistance of the next receiving bank to complete the banking procedures of the credit transfer. 41. If the credit transfer is not completed, article 14(1) provides that "the originator's bank is obligated to refund to the originator any payment received from it, with interest from the day of payment to the day of refund." The originator's bank can in turn recover what it paid to its receiving bank, with interest, and that bank can recover from its receiving bank. The chain of responsibility for refunding stops at the bank that is unable to complete the credit transfer. 42. In practice, the chain of refunds may stop one bank before the bank unable to complete the credit transfer. A credit transfer may fail because a receiving bank becomes insolvent before it executes the payment order it has received, or because the State has issued an embargo on transfers of the type in question or because of war or unsettled conditions in the receiving bank's country. In those cases the same events that cause the credit transfer to fail may make it impossible for the bank to refund to its sending bank. Sometimes it is evident that use of a particular bank or of banks in a particular country would be risky. In such a situation a bank, and particularly an originator's bank, may refuse to accept the payment order unless it is directed by its sender to use a particular intermediary bank to complete the credit transfer. Where a receiving bank is directed to use a particular intermediary bank and it is unable to obtain a refund from the intermediary bank because that bank has suspended payment or is prevented by law from making the refund, the receiving bank is not required to make a refund to its sender. However, in order to be sure that such special situations are not used as a pretext to undermine the obligation to refund, a receiving bank that systematically seeks directions from its senders as to the intermediary banks to be used in credit transfers remains obligated to refund in all cases. 4. Bank's liability for failure to perform one of its obligations 43. It has already been noted that the originator's bank must refund to the originator the amount of the transfer plus interest if the credit transfer is not completed. That so-called "money-back guarantee" is, however, in the nature of restitution and is not in the nature of liability for failure to perform an obligation. 44. Upon closer analysis of the credit transfer transaction, it becomes clear that, if the credit transfer is completed, the only kind of failure by a bank that could occur is one that results in a delay in completion of the credit transfer. No matter which receiving bank causes the delay, the originator's account would be debited at the time expected, but the beneficiary's account would be credited later than expected. Therefore, the Model Law takes the position in article 17(1) that the liability of the receiving bank in delay runs to the beneficiary. That position is taken even though the beneficiary does not have a contractual relationship with any bank in the credit transfer chain other than the beneficiary's bank. 45. The liability of the bank for causing delay is to pay interest. It is current practice in many credit transfer arrangements for a bank that delays implementing a payment order received to issue its payment order for the amount of the transfer 22plus the appropriate amount of interest for the delay. If the bank does so, its receiving bank is obligated to pass on that interest to the beneficiary. Since the delaying bank has acted in a manner calculated to compensate the beneficiary, the delaying bank is discharged of its liability. If the interest is not passed on to the beneficiary as contemplated by article 17, the beneficiary has a direct right to recover the interest from the bank that holds it. 46. If the purpose of the credit transfer was to discharge an obligation owed by the originator to the beneficiary, the beneficiary may have recovered interest from the originator for delay in discharging that obligation. In such a case article 17(3) permits the originator, rather than the beneficiary, to recover interest from the delaying bank. 47. With one exception, the remedy of recovery of interest stated in article 17 is the exclusive remedy available to the originator or the beneficiary. No other remedy that may exist under other doctrines of law is permitted. According to article 18 the one exception is when the failure to execute the payment order, or to execute it properly, occurred "(a) with the specific intent to cause loss, or (b) recklessly and with actual knowledge that loss would be likely to result". In those unusual circumstances of egregious behaviour on the part of the bank, recovery may be based on whatever doctrines of law may be available in the legal system outside the Model Law. 5. Completion of credit transfer and its consequences 48. According to article 19(1), "a credit transfer is completed when the beneficiary's bank accepts a payment order for the benefit of the beneficiary". At that point,... the banking system has completed its obligations to the originator. The beneficiary's bank's subsequent failure to act properly, if that should occur, is the beneficiary's concern. It is not covered by the Model Law but is left to the law otherwise regulating the account relationship. 49. Article 19(1) further provides that, "when the credit transfer is completed, the beneficiary's bank becomes indebted to the beneficiary to the extent of the payment order accepted by it". The Model Law does not enter into the question as to when the beneficiary's bank must credit the beneficiary's account or when it must make the funds available. Those are matters to be governed by the otherwise applicable law governing the account relationship, including any contractual arrangements between the beneficiary and the beneficiary's bank. 50. In many credit transfers the originator and the beneficiary are the same person; the bank customer is merely shifting its funds from one bank to another. In such a case completion of the credit transfer obviously does not change the legal relationship between the originator and the beneficiary. Completion of the credit transfer changes only the relationships between the customer as originator and the originator's bank and between the customer as beneficiary and the beneficiary's bank. 51. Other credit transfers are for the purpose of discharging an obligation due from the originator to the beneficiary. Many delegates to UNCITRAL thought that the Model Law should provide that completion of the credit transfer would discharge the 23obligation to the extent that the obligation would be discharged by payment of the same amount in cash, Other delegates did not think the Model Law should contain such a rule, either because they did not believe that a rule on discharge of an obligation arising out of contract or otherwise should be included in a law on the banking transaction or because they did not believe that the rule proposed was correct. The position finally taken in UNCITRAL was to include the rule in a footnote to article 19 "for States that may wish to adopt it",Те1е【ах: (4 3 -1 ) 237485
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