선박금융상의 선수금환급보증과 수출보증보험제도에 관한 연구 - 대법원 2014. 11. 13 판결 2013다208005를 중심으로 -

Abstract

Small & medium shipbuilding corporations have had the difficulty of obtaining a refund guarantee from commercial banks. The reason is that small & medium shipbuilding corporations have long suffered from financial distress. In this situation the Korea Trade Insurance Corporation made a decision to help small & medium shipbuilding corporations’ difficulty of receiving a refund guarantee. Ship finance is closely related to shipping industry, shipbuilding industry and banking industry and, therefore, complex contractual relationship exists under ship finance. Basically, under a shipbuilding contract a buyer worries about default or bankruptcy of a builder in the course of shipbuilding. So, the buyer asks the refund guarantee for the builder in respect of a shipbuilding contract. As an applicant, the builder makes an effort to obtain the refund guarantee from a guarantor. Generally speaking, a commercial bank becomes a guarantor. This refund guarantee is a kind of independent bank guarantees and the buyer becomes a beneficiary under the refund guarantee. The Korea Trade Insurance Corporation lets commercial banks issue the refund guarantee to small & medium shipbuilding corporations through the export bond insurance system. The Korea Trade Insurance Corporation makes an export bond insurance contract with a commercial bank. In case that a commercial bank as a guarantor paid a guaranteed amount to a beneficiary under the refund guarantee, the Korea Trade Insurance Corporation should pay an insured amount to the commercial bank. In this connection, the Korea Supreme Court decided a case in respect of an export bond insurance contract. In this case, the Korea Supreme Court rejected a plaintiff(Woori Bank)’ arguments on the ground that a plaintiff(Woori Bank) violated terms and conditions of the export bond insurance contract. The Korea Trade Insurance Corporation as a defendant, therefore, won the case. In conclusion, first, the Korea Supreme Court does not sufficiently consider the role and responsibility of the Korea Trade Insurance Corporation under the export bond insurance system. Second, it is necessary for a commercial bank to manage legal risk in connection with the export bond insurance contract.