• 한국중재학회지:중재연구
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• 제19권3호
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• pp.179-198
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• 2009

This paper aims at assessing reasonableness for restraining the independence principle in the operation of documentary credit in case of the illegality appeared in the underlying transactions. It has been a major rule under the independence principle to keep the credit operation free from the defences made by the issuing bank and/or credit applicant with a view to prevent the payment as specified under the credit. And also, it is generally accepted in the international commercial community to examine a presentation to determine, on the basis of the document alone, whether or not the documents appear on their face to constitute a complying presentation. Even though these two essences are major rules in the credit operation, if a presentation is made with the documents forged or materially fraudulent, the issuing bank can refuse to pay the documents in respect of fraud rule based on fraud exception for which a court of appropriate jurisdiction would enjoin such honour. Now we have newly come to another situation to determine whether or not we have to apply the same as fraud rule which is applicable to the illegality in the underlying contract under the new conception of illegality principle based on illegality exception. English Commercial Court handled the illegality case under the case of Mahonia Ltd., v. JP Morgan Chase Bank in 2003 and Justice Colman decided that issuing bank can rely on illegality affecting a letter of credit as an excuse for failure to pay. This judgement brought about the acceptance of illegality principle based on illegality exception as a defence to payment under a letter of credit as far as the illegality concerned in the underlying transactions. It is noticeable that this case will affect our international commercial community more to rely on the illegality in the underlying transactions as a good issue to stop payment for the issuing bank in the L/C operation.

• 한국중재학회지:중재연구
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• 제19권3호
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• pp.161-178
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• 2009

This article focuses on the enforceability of arbitration agreements m the dispute of standby letter of credit, especially with the case analysis of the leading case from the U.S. Bankruptcy Court. In Nova Hut a.s. v. Kaiser Group International Inc. case, while the underlying contract contained an arbitration clause, a guarantee to assure contractor's performance did not contain an arbitration clause. Nova Hut drew on the standby for the Contractor's failure to deliver contractual obligations. Against the Kaiser's action under US Bankruptcy law, Nova Hut moved to stay the proceedings pending arbitration, to compel arbitration, and to dismiss the complaint. The US Bankruptcy Court for the District of Delaware denied Nova Hut's motions. On appeal, Kaiser argued that it was not subject to arbitration since it was not a party to the contract. It also argued that Nova Hut had waived its right to arbitration by filing a proof of claim in the bankruptcy proceeding and commencing legal actions in other countries. The appeals court noted that in order to avoid arbitration on those grounds prejudice must be shown. It indicated that because there was no long delay in requesting arbitration and no discovery conducted m the course of litigation, the Kaiser could not demonstrate actual prejudice on the part of Owner. In light of public policy favoring arbitration, the nature of the claims in the parties' agreements, Kaiser's conduct in embracing the agreements, and their expectation of benefit, the appeals court ruled that the doctrine of equitable estoppel applied in requiring the Parent to arbitrate.

• 정보학연구
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• 제5권3호
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• pp.197-214
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• 2002

전자상거래의 도입으로 인하여 전신송금환(T/T)${\cdot}$우편송금환(M/T)${\cdot}$송금수표(D/D)와 같은 단순송금방식(Remittance), 현금결제방식(COD)과 서류결제방식(CAD), 지급인도조건(D/P)${\cdot}$인수인도조건(D/A)과 같은 추심 결제방식, 신용장(Letter of Credit)방식 등 기존의 무역결제수단이 신용카드(Credit Card), 전자화폐(Electronic Cash), 전자자금이체(EFT; Electronic Fund Transfer), 무역카드(TradeCard), SWIFT의 전자신용장(Electronic L/C), 볼레로 시스템 등의 전자결제시스템으로 전환되었다. 이에 본고는 대표적 전자무역결제시스템인 볼레로와 무역카드를 비교${\cdot}$분석함으로써 이들 시스템의 활용가능성을 모색하고자 하는 것이다.

• 무역상무연구
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• 제13권
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• pp.657-677
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• 2000

Since January 1, 1999, traders, bankers and their counsels worldwide have available for their use the first set of rules exclusively dealing with standby letters of credit:the International Standby Practices(ISP98). Numerous standbys have alreadby been issued in the United States and worldwide subject to the new ISP. The international banking community is anticipating an increasing demand from their customers to issue ISP-governed undertakings. Before the adoption of ISP, traders and bankers had only the choice of issuing their standby subject to the International Chamber of Commerce's(ICC) Uniform Customs and Practices for Documentary Credits(UCP) and, to a much lesser extent, to the ICC's Uniform Rules for Demand Guarantees(URDG). However, practice showed that UCP rules are not easily adapted to regulate transnational standbys. Indeed, UCP was conceived to govern documentary credits, which are intended to serve as a means of payment. By contrast, standbys are means of guaranty. The core of UCP cannot therefore be appropriate for standby practices and, as a consequence, a number of UCP's provisions have to be excluded in the standby's text. UCP's shortcomings indicated above fulfil the requirements of a key factor for the success of uniform rules. Indeed, to achieve success in the sense of meeting the market's acceptance, any such rules should fill a widely recognized need expressed by merchant community to which such rules are addressed. The ISP cleary has such a vocation. Nonetheless, the already largely encumbered regulatory environment of guarantee devices can hardly go unnoticed. The question therefore arises as to the proper place of ISP in such a context.

• 무역상무연구
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• 제12권
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• pp.405-427
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• 1999

Although Uniform Customs and practice for Documentary(UCP) is not a law, it applies to most documentary credits and is binding on all parties unless otherwise expressly stipulated. Besides, Uniform Commercial Code(UCC) Article 5 was codified by the United States and was adopted by every state. Moreover, the New York version of the UCC Article 5-102(4) specifically providing that the UCC does not apply to letters of credit where the parties agree to be governed by the UCP. Identical nonuniform Articles were latter added in Alabama, Arizona, and Missouri. The fact that courts in forty-six of the fifty states are bound by Article 5. Until now, Article 5 of the UCC has probably had an impact on the decisions in New York and the New York common law. Therefore, I examined a few issues on application between Article 5 of the UCC and the UCP. First, although the UCP attempt to introduce a new for examination of document by incorporating "standard practice of financial institutions" and "international banking practice", the standards for documentary compliance are not clear. The UCC attempt to rely on the matter of interpretation for the court, but the UCP would probably be interested in examining in about bank's internal practices as reflected in UCP Articles. Second, the rule for nondocumentary conditions is a useful for stand-by credit transactions under the UCC, but these conditions would probably put the bank in an even worse position in case of documentary credit transactions under the UCP. Third, the UCP does not contain any provision governing the fraud exception, but the UCC codified the fraud and forgery rules developed through American case law. Fourth, the UCP treats the issue of transfer in much more detail than the UCC does. In contract, the UCP's treatment of assignment of proceeds is brief. Finally, I suggest that the fraud exception rules should be prescribed in the UCP in order to protect the issuing bank and the applicant when an unscrupulous party attempts to defraud.

• 무역학회지
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• 제43권4호
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• pp.1-25
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• 2018

본 연구는 현재·시행되고 있는 BPO의 디지털 프로세스와 그 지급에 있어서 제도적 관점에서 기존 제도와 비교·분석하였다. BPO는 기능 면에 있어서 신용장과 유사하지만, 전자적 환경을 기반으로 한 은행 간의 지급약정이기 때문에 그 운용에 있어서는 전통적인 제도와는 많은 차이가 있다. 즉 BPO 거래에서의 책임과 의무, 지급 매카니즘, 거래당사자의 역할, 신용장의 확인과 양도 등에 있어서 많은 차이를 보이고 있다. 그러나 BPO는 정보기술을 기반으로 운용되기 때문에 더 효율적이며 비용 효과적이다. 본 연구는 BPO의 선행 연구를 기반으로 이미 발표된 BPO 관련 연구와 자료 등을 중심으로 문헌 연구하였다.

• 무역학회지
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• 제42권5호
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• pp.233-252
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• 2017

국제무역의 대금결제방식이 기존에는 신용장방식, 추심방식 등이 많이 이용되었지만 최근에는 오픈어카운트 방식으로 그 이용이 증가하고 있다. 이러한 오픈어카운트 방식의 증가추세에 금융권이 대응하고, 정보화 시대에 발맞추고자 새로이 등장한 BPO 제도는 신용장의 지급보장은 물론 전자거래의 편리성을 결제제도에 유용하게 접목시켰다고 할 수 있다. 한편 공급망금융은 기업이 물품을 생산 및 공급하는 과정에서 필요한 운전자금을 보다 신속하게 제공하기 위하여 사용하는 금융으로 특히 자본여력이 충분하지 않은 중소수출기업이 이용함으로써 효율성을 보다 극대화할 수 있다. 이에 본 연구는 중소수출기업이 국제무역거래에서 필요한 자금운용을 적절하게 이용하고, 다국적 기업과 경쟁하여 도태되지 않기 위하여 BPO 제도 및 공급망금융의 효율적 이용을 도모하고자 연구를 진행하였다.

• 무역상무연구
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• 제21권
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• pp.99-127
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• 2003

Legal sources of fraud rule in documentary letter of credit, which have their origin in Sztejn Case can be traced to various rules or laws of international or domestic level ; URCG, URDG and ISP98 as ICC Rules, and UNCITRAL Convention as an international uniform law, and UCC as a domestic law and U.K. cases. Among them the combination of "material fraud" in UCC ${\S}5-109$ and the detailed list of the types of misconduct in UNCITRAL Convention may provide the best solution or standard in real application of the fraud rule in letter of credit transaction.

• 무역상무연구
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• 제49권
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• pp.111-137
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• 2011

UCP 600 Article 14(b), providing rules for the period of the examination of documents, is a radical reorganization of UCP Article 13(b). The provision changes the period of time to a maximum of five banking days instead of reasonable time. One of the critical problems giving rise to the difficulty in interpretation and application is the question of fact that there may be two possible conflicting options in determining the time of checking documents presented. The one doctrine is fixed time(safe harbor) standard, and the other is hidden reasonableness standard. This study analyzes which option should be adopted for the optimal application standard by welfare effect methodology using consumer surplus approach and suggests that safe harbor standard should be optimal solution to the determination of period of examination of documents presented in letter of credit regime.

• 무역상무연구
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• 제43권
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• pp.101-115
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• 2009

More than two years have passed since the latest UCP, Uniform Customs and Practice for Documentary Credits, 2007 Revision, ICC Publication No.600 became valid on July 1, 2007. There has been a lot of confusions in connection with the interpretation of the new UCP since July 1, 2007. Especially the transport document articles of the new UCP are the most confusing ones. Therefore, this work intends to study some points for practical attention of transport documents in the UCP 600. Transport documents can be divided into two kinds of documents such as marine transport documents and other transport documents. But most sellers and buyers distinguish two kinds of transport documents : the document of title and the document of non-title. Most traders consider the document of title importantly and ignore the document of non-title.