독립적 은행보증에서 원인계약상 주채무자에 의한 보증채무금 가압류의 당부

Abstract

As for the target decision, the previous decision on attachment of independent bank deposit receivables held by the owner based on the contractor's receivables for construction payment under the contract was canceled in the attachment objection procedure. This is a reasonable conclusion following the Supreme Court's position in recognizing mutual relationships(abatement) in leases, etc., but the part of judgment that there is no deposit claims subject to attachment, on the ground that the contractor has no right to claim damages after deduction of the construction payment, is somewhat to be misled in terms of abstractness of independent bank guarantees or relieved subordination. First of all, it is reasonable to view that the right to claim compensation for defects in the contract (like construction) is a right that is in a relationship with the right to claim for construction payment, performed mutually at the same time. However, the right to claim damages in lieu of defects or damage due to defects is easily viewed as a mutual abatement relationship with the right to claim for construction payment in that only the payment of money is a problem. It has recognized the mutual relationship between the right to claim the return of the deposit and the hire. It is also necessary to refer to the fact that both the UK and the US have recognized the defense of abatement in litigation in construction contracts. Furthermore, in the target decision, it was considered that there is no claim subject to attachment because the contractor's claim for damages, which can be said to be a debt due to the main debt or original relationship, does not exist due to deduction. there is This is because, in principle, the payment of the independent bank guarantee cannot be refused on the grounds of the principal debt or original relationship for the purpose of the independent bank guarantee, which requires that the deposit be paid in advance before the principal debt is finalized through litigation, etc. However, since the person who allows the parties to receive the deposit ‘first’ is the owner or the beneficiary, it will be said that the principal debtor cannot execute the bond claim first due to the original relationship. In other words, receivables related to cause, such as the contractor's receivables for construction payment, are not eligible for execution relative to the deposit receivables. In the future, it is expected that a clearer judgment or judgment will be made on whether preservative measures such as attachment of deposit bonds are possible based on the eased subordination as an independent bank guarantee contract.