독립적 은행보증의 법적 규율과 관련한 문제점

Independent guarantees has a vital role in the international business transactions as a guarantee device. Although the origin of the independent guarantees is not a old one comparing to commercial letter of credit, it is a most common guarantee device in current international trade community. During last three decades, especially around the Iranian Revolution, international community has experienced the harsh and difficult problems regarding independent guarantees. The problems happened in independent guarantee transaction are mostly concerned with the basic characteristics of independent guarantees, i. e., independence rule and abstract rule. There has been a lot of efforts to solve and settle the problems by international bodies like ICC and UNCITRAL. These efforts have been devoted to enact or amend the norms regarding independent guarantees and standby letters of credit. However, it seems that these problems are not solved yet. The reasons why these problems are still in controversy are various. We can find one of reasons, which is inherently lied in the codification of the rules of independent guarantees. It results in incompleteness of the laws governing the independent guarantees. In other words, current governing laws regarding independent guarantees are not sufficient to govern the independent guarantees. Therefore, any governing laws regarding independent guarantees could not gain the general acceptance like UCP in commercial letter of credit transactions. ISP98 shows this aspect in some sense. I'd liked to suggest that norms regarding independent guarantees and letter of credit including standby letter of credit should get their identity considering the differences in those instruments. It is almost impossible task to provide a complete norm because of its inherent impediments. However, we can avoid the minimum hurdle to govern the independent guarantees through the cure of the patent and latent insufficiency of the laws. I want to emphasize that successful laws are the corner stone of international business transactions.