은행보증거래에서 보증청구의 절차적 부당성에 관한 사례연구

This paper reviewed a case on the procedural wrongful demand for payment under two independent bank guarantees for the liquidated damages claim against the applicant with it's delay in performing the subcontract. The beneficiary became insolvent during the applicant’s performance of the subcontract. The issues had been took placed because the beneficiary notified its intention to call on the bank guarantees provided as security and the applicant rejected any entitlement to do so. The court held that the applicant was entitled to call on the bank guarantees. However, the Court of Appeal held that the beneficiary was not entitled to call on the bank guarantees(lexology.com) due to following main reasons. Firstly, there was no accrued right to the liquidated damages as at the novation date. Secondly, there was no an outstanding debt due and payable to the beneficiary that remained unpaid. And the superintendent’s certification of liquidated damages was invalid because the superintendent had not been validly appointed under the subcontract. This paper aimed at minimizing or preventing the disputes and damages and suggesting the practical notes and countermeasures by reviewing these procedural issues and problems through this case. This study will be based on documentary research and practical field case.