독립적 은행보증의 독립성과 지급금지가처분 － 서울고법 2008.2.28.선고 2007 라 604판결을 중심으로 －

Independent bank 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. Recently, Korean high court decided that beneficiary's claim for premium is amount to the abuse of right. However, the decision has many problems resulting from the distortion of the basic rule and role of independent bank guarantees. The decision ignore the basic characteristics of independent bank guarantees. It should be bear in mind in handling the international instrument like independent bank guarantees to try to promote the international business. It could be achieved to preserve the unique characteristics inherent in international instrument.