화환신용장거래에서 사기서류에 대한 당사자간의 책임문제

Abstract

There has been a worldwide increase in the number of letter of credit cases involving fraud recently. It may happen that the documents which are tendered to the banks under a documentary credit are forged, altered or fraudulent. Banks assume no liability or responsibility for the form, sufficiency, accuracy, genuineness or falsification of any documents. Where the seller's fraud has been called to bank's attention the documents have been presented for payment, the principle of the independence of the bank's obligation and the strict compliance under the letter of credit should not be extended to protect the delinquent seller. That is, if the documents are presented by the seller and are forged or fraudulent, the bank is entitled to refuse payment or acceptance if it is discovered before payment or acceptance and is entitled to recover the money as paid under a mistake of fact if it is discovered after payment. The above mentioned fraud rule, based in the common law definition, requires three elements accordingly to be present : first, a false presentation of fact made by the seller ; secondly, knowledge on the part of the seller that the presentation is false, and thirdly, an intention to induce the bank to act or to refrain from action in reliance upon the misrepresentation.