은행보증거래상 사기규칙 적용상의 주요 쟁점과 그 시사점에 관한 연구

A Study on the Issues and Implications for Application of Fraud Exception in Bank Guarantee Transactions

A bank guarantee is independent of the underlying contract between the principal and the guarantor or that between the beneficiary and the principal. Specifically, the rights and obligation of the guarantor is not affected by disputes arising from the underlying contract. It is the essence for the guarantor to pay the beneficiary if the demand for payment would be presented in compliance with the requirements of the bank guarantee. Nonetheless, the exception has been recognized internationally. The exception should allow guarantor or counter-guarantor to dishonor the drawings that abuse the independence principle. However, outright or manifest facts of fraud must be established in order to apply the fraud exception. The exception is applied by legal principles, the so-called “fraud rule” or “an abuse of rights”. There are lots of disputes or conflicts in applying such concepts as “illegality,” “bad faith,” or “unconscionability”. Therefore, this study aims to contribute in terms of preventing such institutional abuses like misusing as a dispute resolution method between the parties concerned or dishonoring by non-payment as well as fraudulent acts and to reduce the disputes or conflicts by establishing the legitimate scope and standard in applying the fraud rule through reviewing these procedural issues and problems under bank guarantee transactions. This paper also suggested practical implications and countermeasures for institutional application.