간접보증 당사자 간의 법률관계에 대한 연구

The majority of guarantees in support of international transactions are furnished in an indirect manner. The parties of such indirect guarantees include the applicant, the counterguarantee bank (first instructing bank), the guarantee bank (second issuing bank), and the beneficiary. The relationship between the applicant and the counter- guarantee bank has been labelled as one of mandate. The relationship between the counter- guarantee bank and the guarantee bank has also been labelled as one of mandate. If the complying documents are presented to the guarantee bank by the beneficiary, the guarantee bank must honour. There is no direct link between the counter-guarantor and the beneficiary. The consequence is that the beneficiary cannot make a presentation to the counter- guarantee bank, even where the guarantee bank wrongfully dis-honours its undertaking under the guarantee. However, where the applicable law so permits, the beneficiary may be entitled to claim damages from the counter- guarantee bank if the counter- guarantee bank’s conduct gives rise to a tortuous liability vis-a-vis the beneficiary. The guarantee bank engaging in indirect guarantees, due to its complexity, requires care consideration of various factors such as, extension due to unscheduled closure on expiry date and, automatic extension. The counter-guarantee bank is reminded that in the case of a counter-guarantee subject to URDG758 there is an indemnity for foreign laws and usages to the guarantee bank.