국제거래에서 보증신용장의 사기의 지급예외(Fraud Exception)에 관한 최근 미국 연방법원 판결에 대한 고찰 - Archer Daniels Midland Co. and ADM Rice, Inc. v. JP Morgan Chase Bank, N.A. -

A standby letter of credit is generally used to secure the seller’s performance of the contractual obligations in an international trade, while a documentary credit is used to secure the buyer’s payment obligations. An standby letter of credit is, in reality, the same as an independent guarantee (aka a demand guarantee, an independent bank guarantee). An independent guarantee has been used in the European countries, but an standby letter of credit was originated in the U.S. because the U.S. banks were barred from issuing a guarantee. Therefore, a standby letter of credit and an independent guarantee is legally the same device. A standby letter of credit shares independence principle and abstractness with a documentary credit. An issuing bank’s obligation under a standby letter of credit is separate from and independent of the underlying contract. An issuing bank shall honour a demand complying with the requirements of the standby letter of credit alone regardless of the underlying contract. This independence principle promotes the use of a standby letter of credit. However, when there is fraud or forgery, the fraud exception to the independence principle applies. UCP 600, ISP 98, and URDG 758 which may be applicable to a standby letter of credit have no specific provisions on the fraud exception. The UCC has specific provisions on it in article 5-109, and the U.S. courts have allowed fraud exception of a standby letter of credit in many cases. Recently the U.S. Federal court granted fraud exception in Archer Daniels Midland Co. and ADM Rice, Inc. v. JP Morgan Chase Bank, N.A. case (2011). In the instant case, the court granted a preliminary injunction and enjoins the issuing bank (first instructing bank) from rendering payment to the second issuing bank on the ground of fraud in the transaction.