독립적 은행보증의 경제적 합리성과 권리남용의 법리

Independent bank guarantee is governed by the independency principle, that is, it is not dependent upon the relation between the beneficiary/creditor and the applicant of the guarantee/obligor, so is distinct from the usual surety contract. This independency principle is very convenient for the beneficiary, but is highly risky for the applicant. So there can be a question whether independent bank guarantee is economically irrational and unconscionable for the obligor. This paper aims first to demonstrate that the independent bank guarantee is economically rational, as it is beneficial to the obligor as well as the beneficiary. However, the independency principle can be abused for the opportunistic behaviour of the beneficiary. So it is necessary to acknowldege the exception to the independency principle. The abuse of right doctrine is a suitable tool for this purpose. The application of the abuse of right doctrine, however, should be limited to the exceptional cases where it is manifest to the guarantee bank at the time of the request of the payment by the beneficiary, not to disturb the functioning of the independent bank guarantee. Precedents and statutory laws of other jurisdictions and international norms are in the same vein. In this sense, it is alarming that Korean lower courts applied the abuse of right doctrine too easily.