신용장거래에서 개설은행과 매입은행의 주의의무와 준거법 -대법원 2011. 1. 27. 선고 2009다10249 판결의 평석을 중심으로

• 영문명: A study on the duties of an issuing bank and a negotiating bank and proper law issues with the documentary credit
• 발행기관: 한국중재학회
• 저자명: 이정원
• 간행물 정보: 『중재연구』 제22권 제1호, 65~88쪽, 전체 24쪽
• 주제분류: 사회과학 > 무역학
• 파일형태: PDF
• 발행일자: 2012.04.30

영문 초록

Even though there are some discrepancies in detail with the legal characteristic of the issuing bank’s notice to the beneficiary of opening of the letter of credit, article 25 of “the Korean Private International Act(hereunder, ‘KPIA’)” can be applied to the legal relation between the issuing bank and the beneficiary or the negotiating bank. According to article 26 of the KPIA, if there is no agreement between the issuing bank and its opponent party as to the governing law issues, a state’s law which has the closest relationship with the subject case may be applied. In the latter case, given the facts that the issuing bank plays important roles in every phasis of the sale of goods by the letter of credit, a law of place where the issuing bank’s business premises is situated(the lex situs) can be the applicable law. Meanwhile, “the Korean Supreme Court(hereunder ‘KSC’)” held that the beneficiary or the negotiating bank can claim any damages arising due to the refusal or deferred payment of the issuing bank, and the law which governs the above mentioned situation is the same law that is applicable to the legal relation between the issuing bank and the beneficiary or the negotiating bank. The main reason of the KSC’s ruling is that the nature of the legitimate interest rate which is stated in article 3 of “the Act on Special Cases concerning Expedition etc. of Legal Proceeding(hereunder ‘ASCELP’)” is substantial matters, not procedural. Taking into account, however, that the main object of ASCELP lies in expedition of legal proceeding, prompt realization of people’s rights and duties, and prevention of delayed legal proceeding, it is recommendable that ASCELP, instead of the law applicable to the legal relation between the issuing bank and the beneficiary or the negotiating bank, should be applied to the cases in which the malicious debtor’s only and main purpose is delaying the legal proceedings. On the other hand, even if the issuing bank’s duty of examination of the documents which were tendered by the benefic ary or the negotiating bank is restricted to the formality and strict conformity of the documents and not the substantiality of the documents, the issuing bank still has to examine the documents with due diligence that is required to the banks whose main business is sales of documents, not the real goods. In this regard, under the circumstances where the document lacked the regularity and/or the formality on its face because of the forgery of the document and where it was expected that an ordinary banker might have easily found any faults with the document, the issuing bank must compensate any parties for damages when it pays money without due diligence as a banker who engaged in the sales of documents.

목차

Ⅰ. 사실관계 및 대상 판결의 요지

Ⅱ. 연구 및 평석

Ⅲ. 맺으며

참고문헌

Abstract

키워드

신용장 신용장통일규칙 신용장개설은행 매입은행 수익자 국제사법 준거법 소송촉진등에관한특례법 지연손해금 Letter of credit The Uniform Customs and Practice for Documentary Credits Issuing bank Negotiating bank Beneficiary Private international law Governinglaw Act on Special Cases concerning Expedition etc of Legal Proceedings