• 무역상무연구
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• 제12권
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• pp.495-518
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• 1999

Since the end of World War II, the standby letters of credit have been used as a surety device, serving as a performance bond and guarantee in the world. In Korea, the standby letters of credit have been also being used in international transactions. But there have been a few studies on the standby letters of credit. This study is carrying out to reveal the characteristics of the standby letters of credit and the documentary letters of credit and also between the standby letters of credit and guarantees. Secondly, this study is carrying out to indicate types of practical use of standby letters of credit in international transactions, i.e. bid bonds, performance bonds, advanced payment guarantees etc.. Finally, this study is carrying out to indicate governig rules regarding standby letters of credit, i.e. URCG, URDG, UCP, UN Convention on Independent Guarantees and Standby Letters of Credit, ISP etc..

• 무역상무연구
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• 제20권
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• pp.295-315
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• 2003

Since the end of World War II, the standby letters of credit have been used as a surety device, serving as a performance bond and guarantee in the world. UCP has been used a governing rule for standby letters of credit transactions in international commercial transactions. But the UCP may be sufficient for certain simple standbys, it is not fully applicable nor appropriate for standbys - as is recognized in UCP 500 Article 1. On the other hand, the International Standby Practices(ISP98) provide rules of practice drafted specifically for standby letters of credit intended as an alternative to UCP 500. It became effective on January 1, 1999. In addition to restating general rules applicable to all independent undertakings with greater precision than does UCP 500, thereby reducing the possibility of litigation, it addresses issues that commonly arise in standby practice not addressed in UCP 500. UCP 500 is valid and still applies to standby letter of credit "to the extent to which they may be applicable." Since ISP98 and UCP 500 coexist and may be applicable to standby letters of credit by incorporation, applicants, beneficiaries and issuers have a choice. This study will assist all interested parties in establishing the right rules for the right product, for the right standby letters of credit.

• 무역상무연구
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• 제39권
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• pp.87-103
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• 2008

Two kinds of security devices such as independent guarantees and standby letters of credit have been widely used in the international transactions. These devices design to protect one of the parties from a breach by its counter-party. Main uses of these guarantees and standby letters of credit are as follows : bid guarantee, performance guarantee, advance payment guarantee, payment guarantee, retention guarantee, etc. The standby letters of credit were first invented in the U.S.A. and have been widely used in the international and domestic contracts in the U.S.A. But the practical use of these credits is very unsatisfactory in Korea. The purpose of this study is to serve the increase of practical use of the standby letters of credit in Korea through the comparison study on the practical use of the credits between Korea and the U.S.A. Both devices are very similar in function, but they are very different in forms. The one has the form of letter of credits but the other has the form of guarantee. The letter of credit has the stability of governing rule, the legal certainty, and the preference in the field of the trade community comparing to the guarantee. I recommend to use standby letter of credit instead of bank guarantee in international transactions because of the merits of the credit aforesaid.

• 정보학연구
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• 제3권4호
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• pp.55-72
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• 2000

본 연구는 오늘날 국제금융 또는 국제건설공사거래 외에 매매대금의 지급을 위해 활용되는 보증신용장을 중심으로 하여 보증신용장의 본질과 보증신용장과 관련된 국제규칙을 분석한 다음, 보증신용장에 관한 신통일규칙의 제정배경과 규정된 내용 기존의 UCP와 URDG 등과 비교하여 이 규칙의 효용성과 활용상의 문제점들을 구체적으로 제시하였다.

• 한국중재학회지:중재연구
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• 제8권1호
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• pp.323-352
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• 1998

Documentary letters of credit including standby letters of credit are governed by the independence or abstraction rule and the doctrine of strict compliance. Since the former rule requires the issuing bank to honor the drafts regardless of the defective performance of the underlying contract, the applicant(the customer) will be without a remedy if he is unable to make himself whole by litigation on the underlying contract. Therefore, the applicant is exposed to a risk much higher than in the commercial letters of credit. The Uniform Customs and Practice for Documentary Credit(UCP) has no provisions allowing legal relief for the applicant on the abuse of L/C by unscrupulous beneficiary, but UCC ${\S}5-114$ has provision allowing injunctive relief for the applicant. In this paper, I attempted to clarify certain standards of injunctive relief available for the customer in the credit. When there is fraud in the L/C transaction by any of the parties concerned, we must weigh the principle of independence or abstraction and the fraud rules. According to banking practice and judicial precedence, we need not keep the principle of independence and abstaction even in fraudulent transaction and the bona fide sufferer must be protected. The purpose of this paper is to review the studies of Fraud rule and the Injunction and to suggest the applicable standards for the Injunction therory under letters of credit. Specially this paper analysed the following ; (1) the guideline for the fraud (exception) rule to the autonomy principle, (2) the appilcable standards of the Injunction, and (3) the implications on parties concerned in letters of credit transaction. Conclusively, the Injunction should be granted if (1) there is clear proof of fraud (2) the fraud constitutes fraudulent abuse if the independent purpose of L/C (3) irreparble injury might follow if injunction is not granted or the recovery of damages would be seriously endangered.

• 무역상무연구
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• 제33권
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• pp.3-28
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• 2007

A non-documentary conditions is a condition contained in the credit without reference to the presented document in compliance therewith, thereby causing many problems to all parties involved in letter of credit transactions. The purpose of this study is to examine the regulations on the non-documentary conditions under Uniform Customs and Practice for Documentary Credits: UCP, International Standby Practices: ISP98, United Nations Convention on Independent Guarantee and Stand-by Letters of Credit: CIGSLC and Uniform Commercial Code: UCC and also the opinions on the effect of non-documentary conditions through the analysis of several cases on the non-documentary conditions. The result of this study can be summarized as follows: First, UCP, ISP98, CIGSLC and UCC stipulate that banks will deem non-documentary conditions as not stated and will disregard them. Second, courts used to permit the effect of non-documentary conditions. Finally, all parties should not attempt to put in any non-documentary conditions in order to prevent disputes on the effect of non-documentary conditions.

• 무역상무연구
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• 제17권
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• pp.7-35
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• 2002

In many international financing transactions Korean companies are required to issue a guarantee. Thus far, however, legal issues on international guarantees have not been fully discussed in Korea. This is partly because most of the international guarantees are governed by a foreign law such as English law or the laws of the State of New York. In this articles the author examines major concepts or terms and conditions of a typical international guarantee, e.g., language on consideration, primary obligor, joint and several guarantee, unconditional and irrevocable guarantee, continuing guarantee, right of subrogation, representations and warranties, covenant or undertaking, currency indemnity, assignment, participation, governing law and jurisdiction clause, etc. For reference, standard forms of a guarantee and a standby letter of credit are attached to the article. In examining the terms and conditions, the author compares them with similar or equivalent concepts under Korean law. The author further discusses some Korean law issues that may arise under international guarantees governed by a foreign law. These issues include the application of the ultra vires doctrine under Article 34 of the Civil Code of Korea, the validity of an international guarantee which a Korean company has issued in violation of the guarantee ceiling set under Article 10 of the Law on Monopoly Regulation and Fair Trade of Korea and the validity of an international guarantee which a Korean party has issued in violation of the Foreign Exchange Transaction Law. In addition, the author discusses some issues under a so-called independent guarantee and a standby letter of credit. In this regard, reference is made to the Uniform Rules for Demand Guarantee (URDG), International Standby Practices (ISP98) and the Convention on Independent Guarantees and Stand-by Letters of Credit adopted by the United Nations in 1995. Finally, the author examines major terms and conditions of typical comfort letters and discusses some legal issues, such as the binding force of the comfort letter. In dealing with the issues the author underscores that to the extent the issues are not properly dealt with by an international norm such as Uniform Customs and Practice for Documentary Credits or ISP 98, the issues must be analyzed by reference to the governing law of the relevant instrument.

• 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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• 제42권
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• pp.133-160
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• 2009

In International trade the buyer and seller are normally separated from on another not only by distance but also by differences in language and culture. It is rarely possible for the performance of obligations to be simultaneous and the performance of contracts therefore calls for trust in a situation in which the parties are unlikely to feel able to trust each other unless they have a longstanding and successful relationship. Thus the seller under an international contract of sale will not wish to surrender documents of title to goods to the buyer until he has at least an assurance of payment, and no buyer will wish to pay for goods until he has received them. A gap of distrust thus exists which is often bridged by the undertaking of an intermediary known and trusted by both parties who will undertake on his own liability to pay the seller the contract price in return for the documents of title and then pass the documents to the buyer in return for the reimbursement. This is a common explanation of the theory behind the documentary letter of credit in which the undertaking of a bank of international repute serves as a "guarantee" to each party that the other will perform his obligations. The independence principle, also referred to as the "autonomy principle", is at the core of letter of credit or bank guarantee law. This principle provides that the letter of credit or bank guarantee is independent of the underlying contractual commitment - that is, the transaction that the credit is intented to secure - between the applicant and the beneficiary ; the credit is also independent of the relationship between the bank and its customer, the applicant. The most important exception to the independence principle is the doctrine of fraud in the transaction. A strict interpretation of the rule that the guarantee is independent of the underlying transaction would lead to the conclusion that neither fraud nor manifest abuse of rights by the beneficiary would constitute an objection to payment. There is one major problem related to "Independent guarantees", namely abusive or unfair callings. The beneficiary may make an unfair calling under the guarantee. The countermeasure of beneficiary's unfair calling divided three cases. First, advance countermeasure namely by contract. In other words, when the formation of the contract, the parties must insert the Force Majeure Clause, Arbitration Clause to Contract, and clear statement to the condition for demand calling. Second, post countermeasure namely by court. Many countries, including the United States, authorize the courts to grant an order enjoining the issuer from paying or enjoining the beneficiary from receiving payment under the guaranty letter. Third, Export Insurance. For example, the Export Credit Guarantees Department is prepared, subject to certain conditions, to cover the risk of unfair calling. Of course, KEIC in Korea is cover the risk of the all things for guarantees. On international projects, contractor performance is usually guaranteed by either a standby letters of credit or Independent guarantee. These instruments will be care the parties.