국제건설계약상 청구보증

Abstract

This article begins with looking into the concept of the demand guarantee and the structure of its transactions, and examines a number of types of demand guarantees that have been used in international construction contracts in order to secure obligations of the employee, the contractor, in favor of the employer, the owner. They include tender guarantees, performance guarantees, advance payment guarantees, retention money guarantees and warranty guarantees. A demand guarantee in defined as an irrevocable undertaking issued by the guarantor (usually a bank) upon the instructions of the applicant (the contractor) to pay the beneficiary (the owner) any sum that may be demanded by that beneficiary up to a maximum amount stated in the guarantee, upon presentation of a demand complying with the terms of the guarantee. Further, this article discusses and shows that (i) a demand guarantee is independent both of the rights and obligations arising under the international construction contract (called the underlying contract) and of the contract existing between the applicant and the guarantor and (ii) the demand guarantee is documentary in character. Therefore, the guarantor’s payment obligation solely depends on the beneficiary’s complying demand, the determination of which is to be done without the investigation of external facts and the guarantor’s duty to examination is limited to apparent good order of the documents presented. However, if it is beyond doubt that any presented document is falsified or the demand has no conceivable basis, that is there is fraudulent or abusive demand, exceptionally, the guarantor is to be entitled to refuse payment and the applicant may apply for an injunction against the guarantee restraining him from effecting payment. Finally, this article analyses the legal relationships between the parties, by dividing them into the relationship between (i) the applicant and the beneficiary, (ii) the guarantor and the beneficiary, (iii) the applicant and the guarantor, and (iv) the counter-guarantor and the guarantor.