보증채무의 부종성과 독립성

Co-extensiveness principle: a comparative study of guarantor s obligations

This paper offers a brief outline account of various ways in which English court recognised the guarantor s obligations independantly of the principal debtor s obligations. As a general rule, the guarantor s obligations are said to be co-extensive with those of the principal debtor. But there are numerous exceptions to this principle. The court has dealt with directors of a company who guaranteed the company s obligations, the obligations of those who guaranteed the debt of a minor, guarantor s obligations when the principal s obligations are time-barred in such a way as to suggest that the guarantor s obligations would not necessarily be regarded as dependent on or co-extensive with the principal debtor s obligations. The paper pays a particular attention to the way the guarantor s attempt to raise the defence of equitable set-off was dealt with by the English Court. The case of Hyundai Shipbuilding & Heavy Industries Co. Ltd. v. Pournaras is presented to show that a close analysis of the language used in the contract of guarantee as well as the interpretative technique which lays emphasis on the factual and commercial background of the contract would allow enough room to recognise the guarantor s obligations quite independently of the principal debtor s obligations. The creditor is thus shielded from the guarantor s defence of equitable set-off which is rooted in the relationship between the creditor and the principal debtor. Disputes arising from the so-called bank guarantees are also dealt with largely as a matter of contract interpretation. The English Court does not seem to require any new conceptual category such as Garantievertrag to deal with problems of bank guarantee. The English court s approach to guarantor s obligations has always been flexible enough to accommodate bank guarantees as yet another sort of contract of guarantee which would simply require more attention to the parties intention and the factual and commercial background to the contract as well as the language used in the contract. The paper contrasts this English approach with the Korean court s approach to bank guarantees. It is suggested that more attention should be paid to the analysis of the language of the contract used by the parties. Instead of relying on the conceptual distinction between the co-extensiveness of the guarantor s obligations on the one hand and the abstract, independent nature of bank guarantees on the other, the Korea court, it is argued, should perhaps pay more attention to the commercial and business backgrounds of bank guarantees. Moreover, in granting injunctions to stay the bank s payment, the court should be aware of the grave consequences of bank s default in international banking networks.