ntract is invalid, the accessory contract is invalid either”. Because the act of releasing of goods without B/L is absence of legal basis, belonging to illegal activity, the letter of guarantee as the contract of suretyship is invalid either.[39] This standing point recognizes that we should inquire into the issue of the validity of indemnity from the angle of accessory obligation of guarantee contract, but it is not tenable.
Firstly, the obligation which the indemnity guarantees is not the obligation of contract, and is not the act itself of releasing of goods without B/L. The act of releasing of goods without B/L brings about two relationships of debt. One of it is the tort or breach of contract obligation between the carrier and the holder of original B/L. The other one is the relationship of creditor’s right between the carrier and the person who takes delivery without B/L. In my opinion, the relationship between them should be the obligation of undue enrichment. The reason is as aforesaid. The act of the person who takes delivery without B/L is conformity with the essentials of the obligation of undue enrichment. And the relationship between them can only be the obligation of undue enrichment. There’s no contractual relation between them, so the breach of contract can’t be tenable. It’s also impossible to constitute the obligation of voluntary service. Releasing of goods is the voluntary act of the carrier, not infringing his rights, so it doesn’t constitute the obligation of tort either.
Secondly, according to the Provision 5 of 《Guarantee Law》, the master obligation guaranteed should be the “master contract”. But according to the Provision 1 of the 《Jurisdictional interpretation of Guarantee Law》: “ Under the circumstance of non-infringement of the mandatory provisions of law, if the parties create the guarantee for the creditor’s right in the form regulated by the , it may be found validity”. This regulation extends the object of guarantee from “contract” to “creditor’s right”. It’s in conformity with the current tendency of real law. So what’s the letter of guarantee of releasing of goods without B/L guarantees is the obligation of undue enrichment, this standing point has legal basis as mentioned above.
Having cleared-cut the two issues above. Whether the indemnity of releasing of goods without B/L is valid, at first, we should take into consideration that whether the obligation of undue enrichment—— the master obligation it guarantees——is valid. If the master obligation is invalid, the letter of guarantee must be invalid. Secondly, we should consider whether the guarantor has the fraudulent conduct. According to the Provision 41 of《Jurisdictional interpretation of Guarantee Law》: “If the debtor and guarantor fraud the creditor jointly to conclude the master and suretyship contracts, the creditor can claim to the court to rescind the contracts. The debtor and guarantor undertake the joint and several responsibility for the damage of creditor.”
Now we can draw a conclusion: Under general circumstances, if the obligation of undue enrichment between the carrier and the person who takes delivery without B/L is tenable, the letter of guarantee is also valid. In the case of guarantor’s fraudulence, the carrier can request to court for revocating the act of guarantee.
C. The extending tendency of the independence of letter of guarantee—— Demand Guarantees
Recently, the Demand Guarantees are adopted widely in the contract of international sale on goods. It’s widely used for restricting the guarantor in case of abusing the invalidity of master obligation as the reason of counterargument. One of the cardinal principles is that the guarantee is independent of basic transaction and the relationship between guarantor and beneficiary.[40] The banks in U.S.A can’t sign and issue letter of guarantee, so they substitute it with “standby L/C”.[41]
In the case of releasing of goods without B/L, the carrier and the Demand Guarantee presenter agree that when the carrier receives the documents of claim declaration submits to the guarantor, if it’s in conformity with the requirement of Demand Guarantee, the guarantor should pay to the carrier. Thus, the validity of letter of guarantee is independent of master obligation, stressing the autonomy of will of the parties. It is conformity with the regulation of Provision 5 of 《Guarantee Law》 “If the contract of suretyship has other agreements, do according to it”.
6.The resolution to the issue of releasing of goods without B/L

a. The advices given to solve the issue:
(a). Employment of sea waybill: sea waybill is a kind of non-negotiable written document which demonstrates the goods carried by sea have been taken over or shipment by the carrier and the carrier guarantees to deliver goods to the designated consignee.[42] Because of non-negotiable, sea waybill doesn’t represent the ownership of goods, preventing the fraudulence may be brought about in the assignment of B/L. Meanwhile, it reduces the process of circulation, so the consignee can take delivery immediately, adapting to the recent reality of fast shipping but slow exchange of documents. The problem of releasing of goods without B/L is resolved.[43]
(b). Adoption of electronic B/L: It’s a kind of procedure which makes use of the system of EDI to assign the ownership of goods carried by sea. The 《Rules of Electronic B/L》 formulated by CMI stipulates in Provision 9 that: “…when delivering, once the consignee shows the valid document, the carrier must release of good after checking. The owner of goods issues a directive of delivery to the carrier according to the code given by carrier, and the carrier releases of goods according to the directive of delivery”.[44]
(c). T

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