청구보증의 서류성 - 2010년 개정 ICC 청구보증통일규칙을 중심으로－

Abstract

This article looks into the documentary character of demand guarantees. Its discussion is mainly based on the ICC Uniform Rules for Demand Guarantees revised in 2009 and entered into force on July 1, 2010 (URDG 758). The documentary character of demand guarantees, first of all, requires the beneficiary demanding payment under a guarantee to present the guarantor with documents required by the guarantee and the article 15 of URDG 758. By the documentary character, the guarantor is require to examines them and determine, on the basis of the documents alone, whether they appear on their face to constitute a complying demand. In this way, the documentary character precludes the guarantor from examining whether any statements or data contained in the documents presented tell the truth or not. Further, the rule of URDG 758 that requires the guarantor to complete such examination and determination within five business days following the day of presentation has been set to reflect the documentary character of demand guarantees. The guarantor is allowed to reject the demand for documentary discrepancies only. In the same context, non-documentary condition, a condition that does not specify a document to indicate compliance with it, is to be deemed as not stated and be disregarded. That is, a commencement event, a condition stated in guarantees before whose fulilment the guarantee is not operative has to be drafted as a documentary condition; An expiry event, a condition whose fulilment makes the guarantee terminated has to be drafted as a documentary condition; A clause in guarantees designed to reduce or increase the guarantee amount has to be drafted as a documentary condition. Finally, in accordance with the documentary character, as a formal requirement under URDG 758, a demand guarantee has to be issued in writing and a beneficiary’s release of the guarantor from liability under the guarantee has to be made in writing. However, for termination of a guarantee, the guarantor needs not return the guarantee document, without return of which a guarantee terminates on expiry of it or exhaustion of its amount