적용규칙의 명시가 없는 복보증에서 보강진술이 포함되지 않은연장지급선택부 청구의 적법성 - 대법원 2024. 7. 25. 선고 2022다281088 판결을 중심으로 -

In a legal case related to Libyan construction projects, it was determined whether it was legal for Libyan guarantee bank to make extend or pay demand not accompanied by supporting statement under counter-guarantee without applicable rules specified. H Construction Company made a contract in 2008 and 2009 with Libyan Organization for Development of Administration to build housing and commercial buildings. Following application for issuance of counter-guarantee by H Construction Company (Applicant) in 2009, Korea Development Bank (Counter-Guarantee Bank) requested Sahara Bank (Local Guarantee Bank) to issue guarantees in favor of Organization for Development of Administration (Local Guarantee Beneficiary) by issuing counter-guarantees in favor of Sahara Bank. The counter-guarantee was payable against beneficiary’s first simple written demand, where a field 40C (Applicable Rules) of an MT760 was indicated as “NONE” with a governing law being indicated as Libyan Law. When the Local Guarantee Bank requested the Counter-Guarantee Bank “extend or pay” in 2014, the Counter-Guarantee Bank rejected the extension of validity. Unless the Counter- Guarantee Bank should extend its counter-guarantee, payment was to made to the Local Guarantee Bank. So the Counter-Guarantee Bank requested the Counter- Indemnitor to pay the insurance money, but it was refused. The Counter-Guarantee Bank thus filed a lawsuit against the Counter Indemnitor to pay insurance money on 24 January 2017. One of the reasons the Counter Indemnitor refused to pay the insurance was that supporting statement that the Guarantee Bank has received a complying demand from the beneficiary was omitted in the demand of the guarantee bank. Article 20 of URDG458 stipulates that a demand under the counter-guarantee must in any event (i.e. whether or not the counter-guarantees so requires) be supported by a statement by the party to which the counter-guarantee was issued indicating that it has received a complying demand under the guarantee or counter-guarantee issued by that party. Although the counter-guarantee did not state the applicable rules, the Seoul Central District Court recognized URDG458 as an applicable rule in consideration of the fact that Libyan Commercial Act which was the governing law of the counter-guarantee stipulates that the universal rules and precedents will apply when there has not been a Libyan legislation. In addition, the Seoul Central District Court also determined that there was no evidence to exclude the requirement of Article 20 of URDG 458 between Korea Development Bank and Sahara Bank. Accordingly, the Seoul Central District Court ruled that Sahara Bank’s failure to furnish a supporting statement when demanding to the Korea Development Bank was non-complying. Unlike the Seoul Central District Court’s ruling, however, the Seoul High Court ruled that even if URDG458 was an applicable rule, it was difficult to conclude that Article 20 of URDG458, which stipulates the presentation of supporting statement, was applicable. The Korean Supreme Court also did not make any specific comments on the matter. The Seoul Central District Court’s ruling, which recognized that URDG458 applies to the counter-guarantee, can be seen as a misjudgement, considering that the fact that in ICC Official Opinion R865 an indication in field 40C of “NONE” was determined as an exclusion of URDG 758 sub-article 15(b)(corresponding to URDG458 sub-article 20). The URDG requirement for presentation of a supporting statement that is not expressly mentioned in the guarantee or the counter-guarantee can be a potentially fatal trap for beneficiary. A beneficiary that is unaware of this requirement may fail to present a supporting statement. Therefore, in order to ensure that the beneficiary of the guarantee or the counter- guarantee subject to URDG has no disadvantage arising from not knowing this provision, requiring a simple demand of the beneficiary should be amended to exclude sub-article 15(a) or (b). Or it should be amended to delete this sub-article itself. Even if URDG is amended in this way, the beneficiary’s unfair demand can be prevented to some extent by stating to require the beneficiary’s default statement to be presented in the guarantee or the counter-guarantee. Finally, as revealed in the case of Korea Development Bank as above, the parties to the guarantee or the counter-guarantee may not be familiar with the rules related to the supporting statement. So active public relations activity or education by Banking Commission of ICC and global banks is needed to ensure that the parties of the guarantee be well aware of these rules.