신용장 계약의 수익자와 발행은행간 분쟁에 있어 지급장소에 따른 재판관할에 관한 연구 - 브뤼셀 규정(Brussels Regulation) 제 5조 제1항의 적용을 중심으로 -

• 영문명: Allocation of Jurisdiction to Disputes arising out of the Contract between the Issusing Bank and the Beneficiary under Documentary Credits on the basis of the place of payment - With Special Emphasis on Article 5(1) of the Brussels Regulation -
• 발행기관: 한국국제상학회
• 저자명: 한재필(Jae-phil Hahn)
• 간행물 정보: 『국제상학』國際商學 제20권 제4호, 101~121쪽, 전체 21쪽
• 주제분류: 경제경영 > 무역학
• 파일형태: PDF
• 발행일자: 2005.12.01

영문 초록

This article aims at analysing the place of payment by the issuing bank to the beneficiary under a documentary credit in order to allocate the jurisdiction under Article 5 (1) of the Brussels Regulation to disputes arising out of documentary credit contract between the issuing bank and the beneficiary. Where the issuing bank's payment obligation is to accept a draft presented by the beneficiary, ascertainment of the place where the bank's obligation to accept a draft is performed is simple, the place of business of the bank which is to accept the draft. However, where direct payment obligation is given to the beneficiary by the issuing bank, which occurs under the sight credit. or deferred payment credit, the place of payment is not easily determined. Where the express provision of the contract clearly designates such a place, the place of payment will be decided under that provision. Where the place of payment, however, is not specified either expressly or impliedly, since no autonomous European approach has yet been established, the courts of members of the EU may entertain various approaches. Firstly, the court may deem the nature of the documentary credit, providing a guaranteed payment to the beneficiary, as being influential in determining the place of payment. In such a case, the place of payment may be located at the place where the creditor resides; secondly, the place of presentation of the documents for payment may be favoured, viewing that the place of payment would be the place where the bank to which the documents are presented is situated; thirdly, where the beneficiary demands payment and requests the issuing bank to credit his account kept at the issuing bank or a branch thereof, the place of payment should be where the bank which keeps the relevant account is located; fourthly, emphasis may be placed on a nominated bank if the payment obligation owed by the issuing bank to the beneficiary is arranged to be effected through that bank acting as an agent of the issuing bank. In such a case, the issuing bank's payment maybe regarded as made by the nominated bank at the place where it is located. Considering uncleanness of the place of payment in relation to documentary credits within EU, this article suggests that the concept of 'the place of payment' may not be appropriate method to take in allocating jurisdiction, unless an unified approach in ascertaining such a place is shared. In that sense, insertion of the express provision which clearly signifies the place of payment is needed to predictable credit transaction.

목차

Abstract

Ⅰ. 서론

Ⅱ. 브뤼셀 규정(Brussels Regulation) 제5조 제(1)항하 신용장계약의 재판관할

Ⅲ. 대금지급의 장소의 결정에 관한 일반적 규칙

Ⅳ. 신용장 대금지급장소에 대한 재판관할권 할당 분석 : 발행은행과 수익자간의 계약을 중심으로

Ⅴ. 결론

참고문헌