독립적 은행보증의 법리 -그 기본 특성을 중심으로-

Abstract

Independent bank guarantee has a dominant status as a guarantee device in international business transactions. Relatively a short period to commercial letter of credit, it was approved as fast and simple guarantee device for creditors. The basic and important reason why it is prevail in international business transactions lies on its basic characteristics, i. e. independence principle and abstraction principle. Although these characteristics are vital for its commercial effectiveness, international trade community has experienced rigorous results owing to these characteristics. Trade community has recognized that these characteristics are not absolute one but has some exceptions in extraordinary circumstances. How and when these exceptions can be justified? What is the legal theory which can justify the exceptions without harm to its commercial effectiveness. Basically there are two theories for justifying the exceptions. One is fraud rule adopted by common law countries and the other is good faith theory in civil law countries. Nowadays these theories get some justification, however, there is a still controversies in detail, especially requirements of injunctions. Traditionally, the courts of common law countries are very strict for granting injunctions comparing those of civil law countries. The approach employed by common law countries are better than that of civil law countries. Since the basic characteristics of independent bank guarantees are life blood of international transactions, the exception should be narrowly admitted to minimize the harm to the commercial effectiveness of independent guarantees. In this sense, the court should be very careful for its decision to grant injunction.