• 한국콘텐츠학회논문지
• /
• 제21권3호
• /
• pp.626-633
• /
• 2021

주택도시보증공사는 주택분양보증 사고발생시 환급이행을 신청할 경우 분양계약자에게 특별한 사정이 없는 한 입주금을 환급하여 보증 책임을 부담한다. 주택도시보증공사는 환급이행을 약관규제법에 근거하여 거절할 수 있으나 이와 관련하여 이해 당사자 간에 분쟁이 지속적으로 발생되고 있다. 이에 환급이행에 따른 법적쟁점에 대한 문제점과 개선방안을 연구하는 것을 목적으로 한다. 첫째, 약관규제법상 보증효력 및 보증범위의 문제 둘째, 주택도시보증공사의 조건부 제3자를 위한 보증계약의 문제 셋째, 대법원의 기존 판례의 태도의 문제점을 대상으로 검토하였다. 이런 법적 쟁점들을 검토한 결과 환급이행에 따른 약관해석은 신의 성실의 원칙에 따라 해석되어지고 있으나 개별 사안에 따라 판례들이 긍정과 부정 판결로 갈라질 수 있음을 확인하였다. 또한 주택분양보증은 조건부 제3자를 위한 보증계약임에도 불구하고, 이해 당사자와 같은 적극적 다툼으로 수분양자가 선의의 피해를 보는 것을 확인하였다. 이에 주택도시보증공사가 고객의 주거안정을 위한 설립취지에 맞도록 역할과 협력사항의 개선방안을 제안하였다.

• 무역상무연구
• /
• 제17권
• /
• pp.7-35
• /
• 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
• /
• 제72권
• /
• pp.25-55
• /
• 2016

The Buyer shall demand to the Builder the repayment of the pre-delivery instalments paid in case of the Builder's default under a ship-building contract. The Buyer require a refund guarantee issued by a financial institution for a security for the repayment of the pre-delivery instalments paid. As the title of a refund guarantee, in practice, is various, we should look into the contents or the expressions in a guarantee to decide whether a guarantee is a refund guarantee. A refund guarantee, a sort of independent bank guarantee, has characteristic of abstractness, and is independent from the ship-building contract. A refund guarantee is available against the beneficiary's first written demand and signed statement certifying that the Builder failed to make the refund in accordance with the ship-building contract. The guaranteed amount of a refund guarantee will be automatically increased in accordance with the Builder's receipt of the respective instalment, which is not in the other advance payment guarantee. These characteristics of a refund guarantee are derived from the expressions in a refund guarantee rather than inherent therein. This illustrates that careful attention is required to the contents and expressions of the main clauses in a refund guarantee.

• 무역상무연구
• /
• 제44권
• /
• pp.31-55
• /
• 2009

This study attempts to provide a comparative overview of the liability systems Korean law and the PELS adopt, that is, the approaches taken by Korean law and the PELS to deal with various irregularities of contractual performance. In addition, it examines in a comparative way the questions of what is the position of the seller's liability for his delivery of defective goods under the chosen liability system and what is the legal nature of the seller's liability. The study finds that the dual liability system taken by Korean law has caused some complexities as to the matter of which liability is applicable in some borderline cases. The problem in such complexities is originated in that the remedies available and the limitation period applicable are differentiated in accordance with one's different categorization among three types of default under the general liability and defective performance under the seller's guarantee liability. In this light, the study argues that the unified liability system under the PELS is superior because its concept of non-performance embraces in a unitary manner all the aspects of default including defects in quality, quantity and title. In addition, it finds that Korean law has suffered endless debates on the question of what are the true contents of the same remedies of rescission and damages provided under the seller's guarantee liability as under the general liability. The debates have been come along on the basis of the traditional presumption among some of civil law jurisdictions that two liabilities be different in terms of not only their legal nature but also their contents of remedies. The study argues that the problem may be circumvented, first, by another way of thinking that the unified liability in Korean law is inferred from the specification of the identical remedies for both the general liability and the seller's guarantee liability under the KCC, second, by the preposition that the requirement of fault be depended upon what remedy the buyer seeks to claim rather than what liability he does to rely on.

• 무역상무연구
• /
• 제39권
• /
• pp.87-103
• /
• 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.

• 무역상무연구
• /
• 제71권
• /
• pp.85-105
• /
• 2016

Independent guarantee is new financial product developed in international commercial transaction. The nature of independent guarantee is an independent undertaking, which takes the form of documentary transaction. As long as the documents presented by the beneficiary are on their face complying with the terms and conditions of the guarantee, the guarantor is obliged to pay upon the complying presentation. Where parties choose to apply for issue of independent guarantee in international commercial transactions in China, Chinese court shall respect the autonomy of parties. If either the guarantor or the beneficiary is located outside of China, or the facts which cause the establishment, change or cancellation of independent guarantee relationship occurred outside of China, it shall be deemed as foreign related independent guarantee. If the interested parties requests for confirmation of the independence of foreign related independent guarantee, it shall be supported by Chinese court. However, parties dealing with Chinese domestic commercial transaction have not fully realized the severity of independent guarantee liability. The market credit is being cultivated and the financial innovation is being explored at present in China. In order to guard against the systematic and the regional financial risk, before relevant rules are promulgated, Chinese court shall not recognize the independence guarantees issued for the domestic commercial transaction, but treat it as joint liability surety.

• 무역상무연구
• /
• 제61권
• /
• pp.213-245
• /
• 2014

This study has significance in examining the formation requirements and notes for concluding the guarantee contract of minimizing interests and conflicts with the concerned parties by examining issues related to the legal relation and demand payment in the concerned parties and by figuring out the provisions of conformity related to the requirements for demand payment pertinent to the documentary provision in relation to characteristics of demand guarantee. What the concerned parties of using demand guarantee grasp the requirements for demand payment of being compliant with the essence and the guarantee condition of the demand guarantee will lead to possibly preventing a dispute caused by disagreement and being secured the fulfillment of underlying contract. To fulfill a underlying contract that is the objective of issuing the demand guarantee, an effort is needed that minimizes a contract-based risk and a cost by being fully aware of a relevant rule that will be recorded in the terms of payment in the demand guarantee, by reflecting the interests between the concerned parties, and by discussing the payment terms.

• 무역상무연구
• /
• 제26권
• /
• pp.203-223
• /
• 2005

Many international transactions involve the use of security devices, commonly referred to as "guarantees", "bonds", or "standby credits", designed to protect one of the parties from a breach by its counter-party. These security mechanisms may be provided by banks, insurance companies, specialized surety companies, or other financial service firms. Although some legal systems distinguish between "guarantees", "bonds", and "indemnities", these terms are often used as synonyms in the everyday language of international traders. It may therefore be necessary to examine the particular characteristics and nature of the guarantee obligation in order to properly classify the guarantee. Two main categories of guarantee are demand and suretyship. Under a demand guarantee, the guarantor must pay on first demand by the beneficiary. The beneficiary only has to demand payment under the guarantee - there is no need to prove that the principal has actually defaulted on a contractual obligation. Under a suretyship or conditional guarantee, the obligation of the guarantor is triggered by the actual default or contractual breach of the principal, as evidenced in a document such as a court judgement or arbitral award against the principal. Guarantees have been widely used in the international business transactions. Main uses of guarantees are as follows : Performance Bonds/Guarantees, Bid(or Tender) Bonds/Guarantees, Advance Payment or Repayment Bonds/Guarantees, Retention Bonds/Guarantees, Maintenance(or Warranty) Bonds/Guarantees etc.

• 대한한의학회지
• /
• 제21권4호
• /
• pp.159-173
• /
• 2000

Objectives : First, to restore reliability of oriental prescriptions that are effective against incurable diseases, Second, in the short term, to secure the validity of traditional remedies with the help of accumulated data and in the long term, develop new therapeutic methods and prescriptions in order to broaden its aspect in the field of medicine. Third, to maintain predominance on oriental therapeutic methods and put it into practical use based upon the results obtained by this paper. Methods : In the primary sub-thesis(herbalogical analytic methods applied on unknown oriental prescriptions), models of analytic method and in gathering information that could be put into practice are being revised In the secondary sub-thesis(method in gathering and analysing in dealing with oriental prescription), several statistical approaches and analysis on data that has been gathered are being revised. In the tertiary sub-thesis(research on legal guarantee of the offerer rights), an alternative scheme that covers the limitations of the legislative content in dealing with offerer rights is being revised Results : This research has revealed several problems, including those which were foreseen, in proceeding with the project. The prospect of the involvement of the medical personnel engaging in the field of oriental medicine was remarkably bright. Given the condition that the project will proceed as it follows, unknown oriental prescriptions and remedies which have been particularly ignored will eventually play an important role in clinical practice. Conclusions : It is clear to everyone that these oriental remedies will remain ignored by the public unless they gain popularity. Strict verifications on these oriental remedies are definitely needed in order to overcome this limitation. Finally, it should provide a momentum in the field of medicine in gaining popularity to the public.

• 한국통신학회논문지
• /
• 제15권12호
• /
• pp.1017-1030
• /
• 1990

우리가 살고 있는 情報化社會는 非人間化와 프라이버시의 危機를 맞게 된다. 기술발전과 컴퓨터 使用의 增加는 個人情報의 大量 累積과 파일化를 가져오게 되고, 이것은 또한 여러 가지 制度上 未備에 따른 情報 누설 등 私生活의 危險을 초래하게 되었다. 이를 爲한 保護立法이 마련되어야 하며 이에 앞서 프라이버시의 개념과 法的 性質 등 문제가 解明되어야 한다.