독립적 은행보증에서 은행의 책임에 관한 연구

At present, the use of independent bank guarantees is widespread, and the total volume has expanded dramatically in international trade. The growth is partly due to the fact that independent bank guarantees can be employed to back up all kinds of transaction. Traditional means of security, such as the accessory guarantee or suretyship, are cumbersome and disadvantageous to the creditor because the accessory guarantor can invoke every defence which the principal debtor could raise. However, independent bank guarantees operate in much the same way as documentary credits. Accordingly, if the terms and conditions of the bank guarantee are met, the bank must pay, and cannot invoke defences derived from the underlying contract, which is called principle of independence. Nonetheless, the use of independent bank guarantees is not very lively employed to back up international transactions in Korea as those in other western countries. One of reasons could be concerns on legal uncertainties in independent bank guarantees among Korean banks. In the absence of generally adopted international conventions, it is true that there has been a general awareness that independent bank guarantees are an international phenomenon, and that national law should be finely attuned to developments elsewhere. In fact, a significant degree of uniform law across jurisdictional boundaries has spontaneously emerged. The law in many other countries has, of its own accord, developed along uniform patterns. This paper looks into a way to solve legal uncertainties in independent bank guarantees by taking into account the Uniform Rules for Demand Guarantee of the International Chamber of Commerce, 2010 revision(URDG 758), the 1998 International Standby Practices(ISP98), the 1995 UNCITRAL Convention on Independent Guarantees and Stand-by Letters of Credit(UN Convention), the Uniform Customs and Practice for Documentary Credits (UCP 600), and the United States Uniform Commercial Code(UCC). In addition, this paper studies numerous cases in the Europe and the United States, along with Korean cases.