독립적 은행보증에 있어 권리남용 법리의 적용 범위와 한계

Scope and Limit in Application of Doctrine on Abuse of Rights regarding First Demand Bank Guarantee (Subject case: Supreme Court Decision 2013Da53700 Decided August 26, 2014) Kim, Jin-oh In the context of first demand bank guarantee, a beneficiary’s demand for payment constitutes as abuse of rights in case where it is apparent that the demand was made to the guarantor by abusing the abstractness and impersonality of this particular type of bank guarantee. In its ruling on this case, the Supreme Court held that “[i]n considering the intrinsic features of first demand bank guarantee, i.e., abstractness and impersonality, an abuse of rights should not be easily acknowledged unless it can be recognized without a doubt that the beneficiary abused its formal, legal status, as it is objectively evident that the beneficiary lacks any rights whatsoever against the applicant at the time of its demand for payment.” The Court’s decision is significant in that it was the first-ever ruling on the limit in application of the doctrine on abuse of rights regarding first demand bank guarantee, that is a beneficiary’s abuse of rights should not be easily acknowledged unless it is objectively apparent that the beneficiary’s demand was made by abusing the abstractness and impersonality of first demand bank guarantee, despite the beneficiary’s full awareness that it did not have any rights vis-à-vis the guarantor. Furthermore, the Supreme Court appears to have reversed the lower court’s judgment-which rendered the first demand bank guarantee as an ordinary guarantee in subordination to the main obligation-deciding that the lower court erred in its effort to accurately establish facts related to the dispute arising from the complexity of underlying transaction between the applicant and beneficiary, even if the beneficiary’s abuse of rights is not yet evident in light of the intrinsic nature (abstractness and impersonality) of this particular type of bank guarantee. The Supreme Court’s decision can be interpreted as strictly limiting the application of the doctrine on abuse of rights toward first demand bank guarantee, so that the ruling on whether a beneficiary’s demand for payment constitute as abuse of rights is not confounded with the substantive ruling with respect to a dispute between parties on the performance of the underlying transaction.