독립보증에서 법원의 지급금지명령

The law of independent guarantee fashions a rule that the guarantee is independent of the underlying transaction. The independence principle admits an important exception if the beneficiary of independent guarantee demands payment when he has no colorable right to payment. The issue of fraud arises if a defense against payment is made which is founded on grounds derived from the underlying transaction. In the majority of fraud cases, the applicant raises the defense during court proceedings in which he applies for an injunction against the guarantee bank restraining it from effecting payment. Although courts have developed a number of limits to the exception, some courts, unaware perhaps of the danger they pose on the commercial efficacy of these independent guarantees, sometimes engage in wide-ranging fraud. The recent case in the Korean Supreme Court (2014Da53700 decided August 26, 2014) did not grant an injunction. The guarantee bank can never be liable to the applicant in case of alleged fraud. If presented with plausible evidence of fraud, the guarantee bank is willing to postpone payment and assist in attempts to resolve misunderstandings.