독립적 보증에서 연장지급선택부 청구의 적법성에 대한 고찰

Review of the Legality of ‘Extend or Pay’ Requests under Independent Guarantee: Focusing on Cases of Export Bond Insurance Claims in Korea

Purpose - The study aims to suggest an opinion for future supreme courts decision by investigating recent cases of export bond insurance claims against the insurance issuer in which the Libyan bank is involved as a beneficiary of counter-guarantee, and as a confirming bank of standby L/C. To do so, it analyzes, by reviewing the rulings on the cases of the Seoul Central District Court and Seoul High Court, whether or not it is legal for a Libyan bank to issue extend or pay requests against a Korean bank, and whether or not it is an abuse of rights for a Korean bank to make an insurance claim for the insurance issuer. Design/Methodology/Approach - This study reviews and analyzes court decisions of Korea and 7 other countries while focusing on the legality or abuse of rights of bank’s extend or pay requests or insurance claims. Findings - The insurance issuer should pay export bond insurance to Korean banks, since ‘pay or extend’ requests of the Libyan bank against Korean banks and claims of export bond insurance of Korean banks are not illegal. The Singapore High Court ruling that recognized the abuse of the rights of a guarantor and a counter guarantor is not applicable to these cases. Research Implications - Since the insurance issuer issues export bond insurance in favor of Korean banks, it is true that Korean banks, in general, are able to issue counter guarantee or confirmed standby L/Cs in favor of banks in politically unstable countries such as Libya. However, improvement measures should be taken to reduce litigation cases associated with export insurance payments.