독립적 보증으로서의 선수금 환급보증과 권리남용 (대법원 2015.7.9. 선고 2014다64442 판결)

Abstract

In the ship building contract, the ship owner (the buyer) is required to pay in advance the installment several times to the ship yard. However, in case that the ship yard does not keep the promise of the contract and thus the ship building contract is cancelled, the advance installment should be returned to the ship owner. The bank as the guarantor issues a letter called as the refund guarantee (RG), saying that it will pay advance installment on behalf of the ship yard to the ship owner for the benefit of the ship owner. This kind of guarantee is regarded as an independent guarantee by the Korean Supreme Court on July 9, 2015, under which the defences based on the underlying contract is not allowed. The issue of the case was whether the bank as the guarantor was entitled to reject the claim from the ship owner based on the theory of the abuse of the right by the beneficiary in the RG scheme. The Court interpreted the scope of the theory very limited and thus it was not allowed. The author argue that the Korean government should insert a provision regarding the R/G in the Korean Commercial Code like France in order to give foreseeability for stakeholders involved in the R/G transaction.