독립보증에서 법원의 지급금지명령

Court’s Injunction Decision Relative to Independent Guarantee

The law of independent guarantee fashions a rule that the guarantee is independent of theunderlying transaction. The independence principle admits an important exception if the beneficiaryof independent guarantee demands payment when he has no colorable right to payment.The issue of fraud arises if a defense against payment is made which is founded on groundsderived from the underlying transaction. In the majority of fraud cases, the applicant raises thedefense during court proceedings in which he applies for an injunction against the guaranteebank restraining it from effecting payment.Although courts have developed a number of limits to the exception, some courts, unawareperhaps of the danger they pose on the commercial efficacy of these independent guarantees,sometimes engage in wide-ranging fraud. The recent case in the Korean Supreme Court(2014Da53700 decided August 26, 2014) did not grant an injunction. The guarantee bank cannever be liable to the applicant in case of alleged fraud. If presented with plausible evidenceof fraud, the guarantee bank is willing to postpone payment and assist in attempts to resolvemisunderstandings.