국제거래에 있어서 추상적지급약정의 독립성과 그 예외
The Independence Principle and Its Exception of the Abstract Payment Undertaking in International Business Transactions
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Letters of credit and independent bank guarantees have been a major factor in the dynamic growth of international commerce. Although these two instrument have a different role, they have characteristics in common. The basic characteristics of them is a abstraction. The principle of abstraction gives them a vital role in international trade community, however, sometimes it results in serious problem. The international trade community has devoted itself to solve those problems resulted from the misuse or abuse of the principle. Korea is not free from those problems. There are so many cases regarding abstract principle of the abstract payment undertaking in Korea. The reasoning of the Korean Supreme Court Decisions are still so unclear that the problems are yet to be solved. This Article emphasizes that the exception should be narrowly admitted. Since the independence principle of the abstract payment undertaking is a corner stone of its commercial effectiveness, the vitality of international business transactions relies on the principle. Problems are more critical in the independent bank guarantees. Recent Korean high court decision shows that the Korean court are not familiar with the abstract payment undertaking. In determining the independence rule and its exception, the key is the commercial effectiveness of abstract payment undertaking. we should bear in mind the famous proverb regarding the abstract payment undertaking "pay first, dispute later".
Abstract
Letters of credit and independent bank guarantees have been a major factor in the dynamic growth of international commerce. Although these two instrument have a different role, they have characteristics in common. The basic characteristics of them is a abstraction. The principle of abstraction gives them a vital role in international trade community, however, sometimes it results in serious problem. The international trade community has devoted itself to solve those problems resulted from the misuse or abuse of the principle. Korea is not free from those problems. There are so many cases regarding abstract principle of the abstract payment undertaking in Korea. The reasoning of the Korean Supreme Court Decisions are still so unclear that the problems are yet to be solved. This Article emphasizes that the exception should be narrowly admitted. Since the independence principle of the abstract payment undertaking is a corner stone of its commercial effectiveness, the vitality of international business transactions relies on the principle. Problems are more critical in the independent bank guarantees. Recent Korean high court decision shows that the Korean court are not familiar with the abstract payment undertaking. In determining the independence rule and its exception, the key is the commercial effectiveness of abstract payment undertaking. we should bear in mind the famous proverb regarding the abstract payment undertaking "pay first, dispute later".
참고문헌 (16)
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