플랜트수출에서 이행성보증서의 특성 및 실무적 유의점에 대한 고찰

Last year Korea took 8th place in international trade volume by achieving 1,067 billion US Dollars. And the amount awarded of overseas industrial plant amounted to 64.8 billion US Dollars which has slightly decreased by 0.2 billion US Dollars compared to the previous year. However, the annual amount awarded of Korea's overseas industrial plant exceeds 64 billion US Dollars in the previous three consecutive years. These figures count much considering the long lasting global economic crisis. A performance type guarantee, aka a type of independent bank guarantee, bank guarantee, bond, demand guarantee, standby letter of credit etc., is required as a security for non-performance risk by a seller. This guarantee can be classified into bid bond, performance bond, advance payment bond, retention bond, warranty bond etc., which are respectively used by the progressive stage of a project. A performance type guarantee is by nature independent of the underlying contract. A typical performance type guarantee does not require any evidence for a seller's breach of the underlying contract other than written demand(or written statement expressing a seller's breach of the underlying contract). In this respect performance type guarantee's documentary nature is somewhat different from that of a documentary credit which typically requires B/L, commercial invoice, packing list, inspection certificate, etc. Generally a guarantee becomes effective from the time of issuance and remains valid until the expiry date. Although it is commonly understood that a beneficiary may present a demand when a guarantee becomes effective, it is arguable whether a beneficiary may present a demand after the expiry date, especially in case that the event for demand occurs before the expiry date. While a guarantor(bank) shall pay a demand made in accordance with the terms and conditions of the guarantee, a demand may be denied when it is determined to be abusive or unfair.