백투백신용장거래에서 사기의 원칙과 거래상의 사기 - 대법원 2017. 11. 14. 선고 2017다216776 판결을 중심으로 -

Abstract

As we focused on the recent Supreme Court ruling on The principle of Independence and Abstraction and Fraud Rule in the back-to-back L/C transaction, we came to the following conclusion : The principle of the independent and Abstraction in letters of credit is to protect the seller as the exporter, and the Fraud Rule is to protect the buyer as the importer. In addition, Fraud Rule is a principle that is only accepted for exceptional reasons of material and obvious fraud or abuse of rights by the beneficiary in order not to undermine the nature of the L/C transaction. In this case, not only did the goods sent by the exporter arrive well, but rather the importer took the goods and sold them to another person without presenting the shipped bill of lading. And in this series of fraud, the importer played a leading role. Then this case should be seen as an act that deviates from the type of fraud originally anticipated in the Fraud Rule. Therefore, I believe that it is wrong to apply the principle of fraud in this case in which the applicant's fraudulent activities as an importer are mainly problematic. In other words, in order to enforce the Fraud Rule presupposed on the morale of exporters, I think it would be wrong to apply excessive grounds that the beneficiary knew or should have known the fraud of the importer. In addition, only if the Fraud Rule is applied to the fraudulent activities of the beneficiary as the exporter, it is consistent with the original intention of recognizing the principle of independence and abstraction and doctrine of strict compliace to ensure the party's status in the transaction of L/C in a balanced manner. To solve this problem, If there is a trade fraud in the L/C transaction, We believe that the type of fraud should be divided into fraud by the beneficiary and fraud by the importer or other third party, not the beneficiary, to apply the legal theory. Thus, The Fraud Rule applies to the beneficiary's fraudulent activities. Otherwise, it is desirable for all parties to resolve the exercise of rights and obligations in accordance with the grand principle of Private Law that, as originally expected by the L/C, the exercise of rights and the performance of obligations should be exercised on the principle of good faith and not abused. In other words, such a case, as a newly generated fraud, should be resolved by applying the principle of good faith or the prohibition of abuse of rights, not the exception of the principle of independence and abstraction of L/C. I wonder if it would be more appropriate for legal logic to solve this problem in the Supreme Court. And in some cases, our Supreme Court has already explicitly settled the rationale in cases in which the principle of fraud should be applied, with the principle of good faith and the principle of the prohibition of abuse of rights. Therefore, we see no problems with the application of this new logic.