구상보증상 권리남용적 청구

• 영문명: Abusive Demands for Payment under Counter-guarantee
• 발행기관: 한국중재학회
• 저자명: 허해관(Hai Kwan Hur)
• 간행물 정보: 『중재연구』제34권 제2호, 45~64쪽, 전체 20쪽
• 주제분류: 사회과학 > 무역학
• 파일형태: PDF
• 발행일자: 2024.06.30

국문 초록

In international transactions, a demand guarantee is commonly used as a so-called independent bank guarantee to protect against the other party's default under, or breach of, contract). However, there is a risk that the independence and the documentary character of the demand guarantee may be abused by the beneficiary of the guarantee, who may fall into the temptation to demand or call for payment under the guarantee by preparing documents that appear to constitute a complying demand for payment, even though the demand has no conceivable basis. In Korea, through case law, a legal rule has been developed to prevent such abusive calls for payment. This paper examines how such rule that prohibits abuse of rights is applying in the context of counter-guarantees. To this end, this paper first considers the concepts of a demand guarantee and a counter-guarantee and the basic legal principles applicable thereto. And then this paper considers abusive calls under the guarantees, that exceptionally works as grounds for refusal of payment by guarantors and counter-guarantors, further looking at some situations in which the calls amount to be abusive under counter-guarantees in particular.

목차

Ⅰ. 서 언

Ⅱ. 청구보증의 기본적 개념과 법리

Ⅲ. 구상보증상 권리남용적 청구

Ⅳ. 결 언

참고문헌

키워드

청구보증 구상보증 청구보증의 독립성 권리남용 Demand guarantee Counter-guarantee Independence of Demand guarantee Abuse of Rights Abusive calls