구상보증서 지급금지에 대한 중국 법원 판례연구

• 영문명: A Study on Chinese Court Cases Regarding an Injunction Against a Counter-Guarantee 〔CAMA (Luoyang) Aviation Protective Equipment Co. v. UBAF (Hong Kong) Ltd. (2018)〕
• 발행기관: 한국무역연구원
• 저자명: 이선혜(Sun-Hae Lee)
• 간행물 정보: 『무역연구』제17권 제5호, 315~332쪽, 전체 18쪽
• 주제분류: 경제경영 > 무역학
• 파일형태: PDF
• 발행일자: 2021.10.30

영문 초록

Purpose Focusing on recent Chinese court cases, this study aims to review the perspective of Chinese courts on fraud exceptions under a demand guarantee, and derive precaution points for a guarantor in demanding payment under a counter-guarantee. Design/Methodology/Approach A literature study is conducted in relation to recent Chinese court cases with reference to International Standard Demand Guarantee Practice and ICC official opinion related to guarantees or counter guarantees. Findings First, Chinese courts have restricted application of fraud exception since the provisions of China’s Supreme People’s Court on independent guarantees were enacted in 2016. Second, Chinese courts judged that it was a manifest fraud that a guarantor falsely made a demand despite discrepancies in the beneficiary’s demand under a guarantee. Third, counter guarantors must decide whether to pay within five business days following the day of presentation, but often times they delay payment thus being informed from the local court that the applicant has filed for an injunction. Research Implications Chinese courts’ frequent allowance for fraud exception in the past aroused worldwide complaints. However, since enactment of independent guarantee provisions, Chinese courts have rarely issued injunctions. Thus, guarantees and counter-guarantees issued by Chinese banks these days have accordingly been considered trustworthy.

목차

Ⅰ. 서론

Ⅱ. 청구보증과 구상보증의 독립성

Ⅲ. CAMA (Luoyang) Aviation Protective Equipment Co. v. UBAF (Hong Kong) (2018) 사건의 개요

Ⅳ. 주요 쟁점에 대한 법원의 판단 및 평석

Ⅴ. 결론

References

키워드

Chinese Court Counter-Guarantee Fraud Exception Injunction