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1	海上保險人進行對物訴訟理論與程序之研究--主論英國法 / The theories and procedural of admiralty action in rem- especially English law and practice 鄭深元, Cheng, Sun-Yuan Unknown Date (has links) 無論我國航運公司所屬船舶有無「權宜船籍」的問題，於船舶航經英國法權或間接繼受英國法學之區域（如美國、澳洲、紐西蘭、新加坡、香港與加拿大等），皆有受該海事法系統管轄之可能。海上犯罪之行為地管轄固勿論，即使英國非行為地，英國海事法向來均允許對航經英國法權之船舶、運費或貨載等財產（res；property）進行扣押（arrest）以取得對財產之管轄權，俾迫使財產之利害關係人提供擔保或出庭應訊，故即使位居東南亞的我國航運公司亦有了解英國海事法程序特殊性之必要，此不僅可事先規避可能遭受司法扣押的風險，於受扣押之後，亦可即使採取適當行為減少損害進而保護應有權利。因此，對我國航運公司而言，對英國海事程序，特別是對物訴訟（action in rem）的研究不啻為一種法律上的「風險管理」（Risk Management）。本文第二章介紹以複雜著稱的英國法院系統，並將重心置於海事法院之地位與其管轄權之發展，並分類逐條論述海事法院之對物訴訟管轄權（即何種性質之請求權得提海事對物訴訟）。第三章為本文重心，介紹英國對物訴訟理論之發展，並對其理論形成之歷史景、本質理論（程序說（procedural theory）或人格化說（personification theory）等）、與國際公約及普通法間如何取得平衡？財產所有權人或利害關係人出庭應訴與否之責任差異何在等，並於最後對容易致生混淆的相關概念一併釐清。第四章論述現行對物訴訟「程序」問題，從對物訴訟令狀（writ in rem）之聲請、簽發與送達、扣押裁定之聲請與船舶扣押之執行、各種特別聲請（caveat）、財產利害關係人之承認送達（acknowledgment of service）、保釋金（bail）或擔保等之提出、財產之放行（release）、船舶之鑑價與變價、對物訴訟缺席判決（default judgment）、聲請法院付出（payment out）與準備程序行為（preliminary acts）等。第五章討論瑪瑞發禁制令（Mareva Injunction）之最新發展，其可補充對物訴訟船舶扣押效力不足之部分，且其現於海事及商事訴訟上頗為盛行，其可避免被告惡意所為之脫產行為，可禁制大於一艘以上之被告船舶，有特予介紹論述的必要。於民事訴訟法中增訂一編海事程序之草案，以為本文結論。對物訴訟船舶抵押瑪瑞發禁制令扣押裁定對抗扣押之特別聲請海事實務 Action in rem Arrest of ships Mareva injunction Warrant of arrest Caveat against arrrest Admiralty pactice
2	Selective legal aspects of bank demand guarantees Kelly-Louw, Michelle 31 October 2008 (has links) Bank demand guarantees have become an established part of international trade. Demand guarantees, standby letters of credit and commercial letters of credit are all treated as autonomous contracts whose operation will not be interfered with by courts on grounds immaterial to the guarantee or credit itself. The idea in the documentary credit transaction/demand guarantee transaction is that if the documents (where applicable) presented are in line with the terms of the credit/guarantee the bank has to pay, and if the documents do not correspond to the requirements, the bank must not pay. However, over the years a limited number of exceptions to the autonomy principle of demand guarantees and letters of credit have come to be acknowledged and accepted in practice. In certain circumstances, the autonomy of demand guarantees and letters of credit may be ignored by the bank and regard may be had to the terms and conditions of the underlying contract. The main exceptions concern fraud and illegality in the underlying contract. In this thesis a great deal of consideration has been given to fraud and illegality as possible grounds on which payment under demand guarantees and letters of credit have been attacked (and sometimes even prevented) in the English, American and South African courts. It will be shown that the prospect of success depends on the law applicable to the demand guarantee and letter of credit, and the approach a court in a specific jurisdiction takes. At present, South Africa has limited literature on demand guarantees, and the case law regarding the grounds upon which payment under a demand guarantee might be prevented is scarce and often non-existent. In South Africa one finds guidance by looking at similar South African case law dealing with commercial and standby letters of credit and applying these similar principles to demand guarantees. The courts, furthermore, find guidance by looking at how other jurisdictions, in particular the English courts, deal with these issues. Therefore, how the South African courts currently deal/should be dealing/probably will be dealing with the unfair and fraudulent calling of demand guarantees/letters of credit is discussed in this thesis. / Jurisprudence / LL.D Uniform Commercial Code (UCC) UCP 600 UCP 500 Standby letter of credit Preliminary injunction Performance guarantee Performance bond Mareva injunction Letter of credit Irrevocable letter of credit International Standby Practices (ISP98) International Chamber of Commerce (ICC) Interlocutory injunction Interdict Interim interdict Injunction Independent guarantee Independence principle Illegality in the underlying contract Illegality Freezing injunction Fraud Documentary credit Doctrine of strict compliance Demand guarantee Bank guarantee Autonomy principle Anti-dissipation interdict Against good morals or public policy 346.74 Suretyship and guaranty Letters of credit Fraud
3	Selective legal aspects of bank demand guarantees Kelly-Louw, Michelle 31 October 2008 (has links) Bank demand guarantees have become an established part of international trade. Demand guarantees, standby letters of credit and commercial letters of credit are all treated as autonomous contracts whose operation will not be interfered with by courts on grounds immaterial to the guarantee or credit itself. The idea in the documentary credit transaction/demand guarantee transaction is that if the documents (where applicable) presented are in line with the terms of the credit/guarantee the bank has to pay, and if the documents do not correspond to the requirements, the bank must not pay. However, over the years a limited number of exceptions to the autonomy principle of demand guarantees and letters of credit have come to be acknowledged and accepted in practice. In certain circumstances, the autonomy of demand guarantees and letters of credit may be ignored by the bank and regard may be had to the terms and conditions of the underlying contract. The main exceptions concern fraud and illegality in the underlying contract. In this thesis a great deal of consideration has been given to fraud and illegality as possible grounds on which payment under demand guarantees and letters of credit have been attacked (and sometimes even prevented) in the English, American and South African courts. It will be shown that the prospect of success depends on the law applicable to the demand guarantee and letter of credit, and the approach a court in a specific jurisdiction takes. At present, South Africa has limited literature on demand guarantees, and the case law regarding the grounds upon which payment under a demand guarantee might be prevented is scarce and often non-existent. In South Africa one finds guidance by looking at similar South African case law dealing with commercial and standby letters of credit and applying these similar principles to demand guarantees. The courts, furthermore, find guidance by looking at how other jurisdictions, in particular the English courts, deal with these issues. Therefore, how the South African courts currently deal/should be dealing/probably will be dealing with the unfair and fraudulent calling of demand guarantees/letters of credit is discussed in this thesis. / Jurisprudence / LL.D Uniform Commercial Code (UCC) UCP 600 UCP 500 Standby letter of credit Preliminary injunction Performance guarantee Performance bond Mareva injunction Letter of credit Irrevocable letter of credit International Standby Practices (ISP98) International Chamber of Commerce (ICC) Interlocutory injunction Interdict Interim interdict Injunction Independent guarantee Independence principle Illegality in the underlying contract Illegality Freezing injunction Fraud Documentary credit Doctrine of strict compliance Demand guarantee Bank guarantee Autonomy principle Anti-dissipation interdict Against good morals or public policy 346.74 Suretyship and guaranty Letters of credit Fraud

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