서류심사에 대한 제6차 개정 신용장통일규칙 연구

박세운(Sae-woon Park),김영락(Young-rak Kim),방두완(Doo-woan Bahng) 한국국제상학회 2006 國際商學 Vol.21 No.4

  UCP 600 approved at the Banking Commission meeting of ICC at the end of October 2006 and comes into effect 01 July 2007. The main revision of the UCP 600 concerning the examination of documents are as follows. First, the expression " n its face" was removed from the rules except one place. Secondly, "reasonable time" was deleted and the maximun number of banking days available for banks to examine documents had been limited to five from seven. The removal of "reasonable time, not to exceed seven banking days" for checking documents and its replacement by five banking days should shorten the process and make L/Cs more attractive in the market. Thirdly, the address of applicant and beneficiary appearing in any stipulated document need not be the same as long as they are within the same country.

통상법,제도 : 신용장과 청구보증서의 비서류적 조건의 유효성에 관한 연구

박세운 ( Sae Woon Park ),최장우 ( Jang Woo Choi ) 한국통상정보학회 2011 통상정보연구 Vol.13 No.4

신용장거래에서 은행이 신용장조건과의 일치성 여부를 심사할 때 비서류적 조건을 고려하도록 요구하는 시도는 신용장의 독립성의 원칙을 저해하여, 은행의 신용장거래에 따른 위험을 증가시킨다. 따라서 UCP500에서부터 신용장의 비서류적 조건은 무시된다고 규정하게 되었다. 단 ICC Position Paper No.3에 따라 신용장에 관련 서류가 요구되었다면 유효성이 인정되었다. UCP600도 UCP500과 마찬가지로 규정하고 있지만 UCP600에는 ICC Position Paper No.3이 적용되지 않으므로 비서류적 조건과 관련된 서류를 신용장에서 요구하였더라도 무시된다는 점이 다르다. 신용장거래에 UCP600이 적용된다고 하여 비서류적 조건이라고 하여 무조건 무시되지 않는다는 점에 유의하여야 한다. 국제표준은행관행에서는 비서류적 조건 중 서류조건으로 전환하기 어려운 것은 유효성이 인정되고 있다. 즉 각국의 판례에서 객관적 지표로서 결정될 수 있거나 개설은행 자신의 기록 또는 활동으로부터 확인할 수 있는 것은 비서류적 조건이더라도 유효성이 인정되고 있다. ISP98과 URDG758에서는 이와 같은 것을 비서류적 조건으로 보지 않는다고 규정하고 있다. 개설의뢰인은 신용장 개설을 신청할 때 비서류적 조건이 기재되지 않도록 유의하여야 한다. Any attempt which requires banks to consider non-documentary conditions would destroy autonomy principle and increase the risks of the bank in L/C transactions. Therefore, non-documentary conditions are disregarded in the letter of credit. This provision was first introduced in UCP500, but later, ICC Position Paper No.3 added that if L/C requires documents related to non-documentary conditions, it cannot be disregarded. While the language in UCP600 is basically the same as that in UCP500, there is a difference between the two in that the former disregards the documents related to non-documentary conditions even if they are required by L/C. However, it should be remembered that international standard banking practice does not disregard all of non-documentary conditions. It recognizes the validity of some non-documentary conditions which it is not feasible to change into documentary conditions. That is, such non-documentary conditions as can be determined from an index specified in the guarantee or identified from the issuing bank`s own records or their normal operations are recognized as valid in legal cases. ISP98 and URDG758 do not consider these as non-documentary conditions. The applicant should be cautious not to include non-documentary conditions in their applications.

신용장 및 보증서 원본 관련 판례분석

박세운(Sae-woon Park),정두식(Doo-sig Jung) 한국국제상학회 2012 國際商學 Vol.27 No.1

It is indisputable that mail credits and mail guarantees are regarded as original in themselves. However, it is controversial whether teletransmitted credits or guarantees are regarded as original. If an advising bank prints the teletransmission and advises to the beneficiaries the teletransmission accompanied by a covering letter, then it can be regarded as an original. But it can be disputable when the advising bank just advises the teletransmission online after checking the apparent authenticity only. There is a law case that a telefaxed copy can not be regarded as original even if it may in a certain circumstances qualify as an operative credit instrument. Such confusion regarding the original as such can be attributed to the lack of definition of the original credits in a uniform rule. Besides, a failure to present original L/C or guarantee when the presentation of its original L/C or guarantee is required may cause refusal in some law cases and international standards banking practices. Thus, when presentation of original is required in L/C or guarantee, the beneficiary should ask either to delete the condition or to add a condition that the issuing bank may provide a replacement or waive any requirement that the original be presented when an original is lost. Other possible remedy would be to have the lost document declared invalid by the court. The drawback is that the procedure for such a declaration takes at least six months, so it is unlikely that a court order will be obtained before L/C or the guarantee expires.

UCP700 개정 방향에 대한 연구

박세운(Sae-Woon Park) 한국국제상학회 2016 國際商學 Vol.31 No.4

UCP600이 개정된 지 10년이 지나고 있으므로 2017년도에는 본격적으로 개정 논의가 시작될 것으로 보인다. 2015년부터 몇몇 전문가가 UCP700에 대한 제안을 하고 있다. 여기서는 이들 전문가의 제안사항을 검토하고 필자의 의견을 제시하였다. 필자는 UCP700은 다음과 같은 개정되어야 한다고 생각한다. 첫째, 신용장의 종류를 종래의 지급, 연지급, 인수 및 매입신용장에서 일람지급신용장과 기한부신용장의 두 종류로 단순화하고, 환어음을 폐지해야 한다. 둘째, 개설은행이 신용장조건변경을 한 경우 수익자가 지정은행에 서류를 제시하면서 아직 수락하지 않은 조건변경을 수락할 것인지 아니면 거절할 것인지를 확인해야 한다. 셋째, 불가항력으로 은행 영업이 정지되어 수익자가 서류를 제시하지 못하였다면 유효기일은 영업 재개 후 5영업일이 연장되어야 한다. Purpose : The process to revise UCP600 is expected to start soon. As an LC specialist in the academic community, I would like to present some suggestions on the impending revision. Research design, data, methodology : This paper reviews and analyzes literature concerning UCP700 wish lists, and gives some suggestions on the revision of UCP600. Results : My wish lists for UCP700 are as follows: First, two kinds of credits, such as payment and deferred payment credits are sufficient for types of credit. Second, the beneficiary must notify acceptance or rejection of an amendment. Third, on force majeure, the expiry date of presentation by the beneficiary must be allowed for five banking day periods after the bank re-opens. Conclusions : There are many UCP700 wish lists. I hope the next revision of UCP will become more efficient and user-friendly.

간접보증 당사자 간의 법률관계에 대한 연구

박세운(Sae-Woon Park) 한국무역연구원 2015 무역연구 Vol.11 No.5

The majority of guarantees in support of international transactions are furnished in an indirect manner. The parties of such indirect guarantees include the applicant, the counter-guarantee bank (first instructing bank), the guarantee bank (second issuing bank), and the beneficiary. The relationship between the applicant and the counter- guarantee bank has been labelled as one of mandate. The relationship between the counter- guarantee bank and the guarantee bank has also been labelled as one of mandate. If the complying documents are presented to the guarantee bank by the beneficiary, the guarantee bank must honour. There is no direct link between the counter-guarantor and the beneficiary. The consequence is that the beneficiary cannot make a presentation to the counter- guarantee bank, even where the guarantee bank wrongfully dis-honours its undertaking under the guarantee. However, where the applicable law so permits, the beneficiary may be entitled to claim damages from the counter- guarantee bank if the counter- guarantee bank’s conduct gives rise to a tortuous liability vis-a-vis the beneficiary. The guarantee bank engaging in indirect guarantees, due to its complexity, requires care consideration of various factors such as, extension due to unscheduled closure on expiry date and, automatic extension. The counter-guarantee bank is reminded that in the case of a counter-guarantee subject to URDG758 there is an indemnity for foreign laws and usages to the guarantee bank.

우리나라 인구고령화가 주택가격에 미치는 효과

박세운(Park, Sae- Woon),박순연(Park, Soon-Yeon),김희호(Kim, Hee-Ho) 한국산업경제학회 2016 한국산업경제학회 정기학술발표대회 논문집 Vol.2016 No.5

기명식 선하증권의 담보 효력

박세운(Park, Sae Woon),한기문(Han, Ki Moon) 한국무역상무학회 2012 貿易商務硏究 Vol.53 No.-

The straight bill of lading is regarded as the documents of title except in American law after The Rafaela S case. The Carewins case also decided that the exclusion clause of bill of lading did not exempt carriers from liability when the carriers delivered the cargo to the consignee without the production of original bill of lading. And the court said that the carrier was responsible for delivering the goods against a forged bill of lading regardless of exemption clause of bill of lading in the Motis case. It may be assumed through these cases that the straight bill of lading as a document of title gives documentary security to the banks in trade finance. However, there can be some downside to the efficacy of the straight bill of lading as collateral. First, when it is subject to the English law, the shipper can arbitrarily change the consignee different from the one named in the document. Second, some bills of lading bear provisions relating to the carrier delivering the goods upon reasonable proof of identity without the surrender of an original and/or genuine bill of lading.

신용장거래에서 개설은행의 지급거절에 대한 연구

박세운(Sae Woon Park) 한국무역연구원 2014 무역연구 Vol.10 No.5

An issuing bank has to advise the nominated bank within five banking days whether or not a presentation is compliant. If the issuing bank fails to do so, the issuing bank is then precluded from claiming that the presentation is non-compliant. Whether a bank completes examination of the presented documents within a reasonable time depends on the facts of each case. As there was no objective standard for reasonable time stipulated in UCP500, beneficiaries often used the term to sue the issuing bank for delays, especially when the beneficiary had a weak case for claiming discrepancies. There has been a major change in UCP600 concerning examination and refusal of documents: the removal of reasonable time for document examination. Many L/C practitioners think that five banking days are allowed for banks for examination and refusal. Still, the L/C community has not reached an agreement on this. Therefore, it may be advisable that bankers send refusal notice to the presenter as soon as possible within five banking days when an issuing bank decides to refuse. Given that document examination is the most important part of L/C operation, bankers are advised to be well aware of this stipulation in UCP600.

청구보증서 사기의 지급예외에 관한 중국 법원 판결에 대한 고찰

박세운(Sae-Woon Park) 한국무역연구원 2019 무역연구 Vol.15 No.1

The Guarantor shall pay a complying demand even if the applicant has fulfilled the obligation of the underlying contract. However, since this does not encourage a beneficiary’s fraudulent demand, if the fraud of the beneficiary is certain, the court may issue an injunction to the guarantor. Since guarantee disputes are settled outside the court, the content is not well known outside. However, judicial cases provide an opportunity to know the contents of the dispute. Here, the Chinese court case, Powers Links International v. Far East Cable Co. Ltd (2016), is analyzed to know the criteria of the injunction. In this case, the contract was not written with the actual signature date, but the signature date of the draft was kept as it was, giving the beneficiary a cause for dispute through fraudulent demand. This case reveals that trivial things may cause significant harm to a party if sufficient care is not observed in international transactions. In this case, the beneficiary demanded the guarantor, claiming that the applicant did not provide the bid bond mistakenly requested in the draft contract. The court concluded that the beneficiary clearly knew that the applicant was not in default, but made the demand under the guarantee. So the court issued an injunction.

ISBP 주요 개정사항에 대한 연구

박세운(Sae-Woon Park),한기문(Ki-Moon Han) 한국관세학회 2012 관세학회지 Vol.13 No.4

ISBP plays an important role as one of standard rules in LC transaction by supplementing UCP. Established in 2002, ISBP was once updated in 2007 and now a revision processing is underway. Currently 4th draft has been completed and a final version is expected to come out in April 2013 with a target of implementation in July 2013. The upcoming revised ISBP reflected recent ICC opinions and explain more and comprehensively, compared to current ISBP, about several areas including documents such as packing list, beneficiary’s certificate, thereby enhancing standards of LC transaction along with prevention of LC disputes. However, ISBP is not international rule and therefore the banks shall not employ ISBP as main base of rejection but use as supporting references. Major changes are ; dating is required according to nature of certificates, when a shipping document is required parties other that beneficiary can issue such document, a clear definition of range of arithmetical calculation, goods with expressions ‘imitation’, ‘second hand’ are regarded as different goods, reflection of 2010 ICC decision for on board notation, listing customs office and governmental authorities as additional issuers of origin of certificates. However current 4th does not mention about ‘surrender B/L’ and ‘on board notation on airway bills’ which are often used in Korea and therefore these are required to be mentioned in the final version.