보증보험과 청구보증통일규칙

Abstract

Demand guarantee is defined as an undertaking issued by the guarantor upon the instructions of the applicant to pay the beneficiary the sum that stated in the guarantee, upon presentation of a demand complying with the terms of the guarantee. Documentary character and independence are important features of demand guarantees. Counter Guarantee Bond(CGB), issued by the guarantee insurance company, serves as counter-demand guarantee in international trades. In order to perform these functions as counter-demand guarantee well, independence and documentary character are required as well as original demand guarantee. However, the provisions of the Civil Act concerning guaranteed debts shall apply mutatis mutandis to guarantee insurance contracts to the extent not contrary to the nature thereof(Commercial Act article 726-7, provisions applicable mutatis mutandis). In general, the guarantee of civil law is understood to have the feature of subordinate property. Therefore, one may wonder if the guarantee insurance with documentary character and independence runs counter to the commercial law Article 726-7, provisions applicable mutatis mutandis. This article argues that CGB with independence and documentary character does not lose its guarantee insurance character. therefor it does not run counter to the law. CGB shares essential characteristics with a demand guarantee in terms of documentary character and independence, but can be seen as a new type of guarantee insurance contract that does not lose its character as a guarantee insurance policy. The current CGB is not the same as the demand guarantee in URGS 758. It may be necessary to design CGB with standardized contents in accordance with URGS 758. This article argues that this type of guarantee insurance is also legal and valid.