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.

Incoterms 2010의 DAT와 DAP의 운송조항에 관한 연구

박세운(Sae-Woon Park) 한국무역연구원 2018 무역연구 Vol.14 No.1

Incoterms?? 2010 D-terms such as DAT and DAP means that the seller is responsible for the goods until they arrive at the country of destination. The seller not only pays the cost of transport to the ultimate destination, it is also at risk for any damage that may occur to the goods up to that point. Carriers charge lower freight rates for shippers that ship large quantities. Therefore, the total cost of transport will be cheaper if it is arranged entirely either by the seller or buyer. This appears to favor the trading parties preferring D-terms over C-terms. D-terms enable the seller to have greater control over the quality of transport, so that the seller can control the arrival of the goods in time and in good condition. In highly competitive markets, the seller can attract more buyers by quoting D-terms at competitive prices. The buyer can also easily compare offers from different countries with the price quoting D-terms. The division of costs between the buyer and the seller on sales contracts should be stipulated sufficiently and accurately because Incoterms?? 2010 does not stipulate all of these things in detail.

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.

신용장거래에서 운송서류의 위험요인에 관한 연구

박세운(Park, Sae Woon) 한국무역상무학회 2010 貿易商務硏究 Vol.45 No.-

L/C provides the exporter and the importer with safe assurance in the exchange of goods for payment in international trade. It involves a number of parties. Although the parties may have confidence in their client, bad faith or ignorance of international banking practice by any of these parties could cause the failure of transaction, which makes international trade a risky business. Most of the risks are found in transport document, which can cause disputes. There are many factors in the risk of transport documents under L/C transaction. One most common risk factor for the beneficiary in all transport documents is even if there is no discrepancy in document, the issuing bank or the applicant refuses to pay or delay payment insisting there is a discrepancy. In some very rare cases, the beneficiary may not get paid due to unfair injunction of the local court of the applicant. For the applicant, most common risk factors are fake bill and fraud. Risks classified according to the sorts of transport documents are as follows. 1. In B/L, payment can be refused because it is regarded as charter party B/L, although there is no real charter party contract. And the applicant can bear the potential risk of the loss or deterioration of cargo through transhipment of the cargo loaded on board in container if transhipment is prohibited without excluding of UCP 600 article 20 (c). 2. In charter party B/L, the applicant may take delivery without paying when charter party B/L is signed by charterer, which can result in a big loss for the beneficiary and the negotiating bank. And risks may arise when cargo is seized because the charterer does not pay the hire. The applicant and the issuing bank are also vulnerable to a risk - Against whom should they file a suit when cargo gets damaged during transportation? 3. In multimodal transport document, which is subject to a conflict because there is a big difference in viewpoints between transport industry and banks, conflicts may also arise when L/C requires ocean B/L and accepts multimodal transport document at the same time, but does not specify the details. 4. In air waybill, where the consignee is not the issuing bank but the applicant, risks may take place to the beneficiary when the applicant takes delivery but refuses to pay asserting minor discrepancies in document. The applicant may also bear the risk when cargo may not be loaded because air waybill is a received bill. Another risk may arise when although the applicant prohibits transhipment without excluding UCP 600 article 23 (c), the cargo may be transhipped, provided that the entire carriage is covered by one and the same air waybill.

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.

UCP600에서 확인은행의 지위와 책임

박세운(Sae-Woon Park),이선혜(Sun-Hae Lee) 한국통상정보학회 2012 통상정보연구 Vol.14 No.4

확인은행은 수익자가 신용장조건과 일치하는 제시를 하면 수익자에게 대금지급을 확약한다. 그러나 신용장 사기가 명백한 경우 확인은행은 개설은행과 마찬가지로 대금을 지급할 의무를 지지 않는다. 즉 확인은행이 서류 위조에 대한 위험까지 부담하는 것은 아니다. 확인은행이 발견하지 못한 하자를 개설은행이 발견한 경우 확인은행이 수익자 또는 지정은행에 소구권을 행사할 수 없다. 왜냐하면 UCP600에서 서류 접수 후 5은행영업일이 경과하면 개설은행 또는 확인은행은 서류 하자를 이유로 대금지급을 거절할 수 없기 때문이다. 확인은행이 수익자의 하자 있는 서류의 용인을 개설은행에 요구하여, 개설은행이 이것을 용인하였다 하더라도 확인은행은 확인에 따른 책임을 지지 않는다. 기한부 매입신용장에서 확인은행이 지정은행인 경우 수익자가 신용장조건과 일치하는 서류를 제시하면 확인은행은 즉시 신용장 대금을 지급하여야 한다. 따라서 확인은행이 즉시 대금을 지급할 의사가 없다면 기한부신용장에서 연지급 또는 인수신용장을 이용하여야 한다. 수익자 입장에서 신용장 확인을 받더라도 서류 일치성 여부에 대한 분쟁이 발생할 수 있으므로 대금회수가 100% 보장되는 것은 아니다. 신용장 확인보다는 상환은행의 상환확약이 더 안전하다. The confirming bank undertakes to make payment to the beneficiary, provided that a complying presentation is made and complies with its confirmation. In case L/C fraud is evident, though, the confirming bank as well as the issuing bank does not have the obligation to make payment. That is, the confirming bank does not take the risks involving documentary fraud. The confirming bank cannot exercise the right to recourse toward the beneficiary or the nominated bank when the issuing bank finds the discrepancies which the confirming bank has not noticed. This is because under UCP600, the issuing bank or the confirming bank cannot refuse to make payment with the cause of documentary discrepancy after 5 banking days following the presentation of documents. Even if the issuing bank accepts the discrepant documents following the confirming bank"s request to do so, the confirming bank does not have the responsibility for the confirmation. When under Usance Negotiation Credit, the confirming bank acts as the nominated bank, the confirming bank should make payment in no time if the beneficiary presents complying documents. Therefore, unless the confirming bank intends to make immediate payment, they should consider using Deferred Payment or Acceptance L/C in Usance Credit. It is also safer for the beneficiary to have the reimbursing bank"s undertaking to the reimbursement than just have confirmation of the credit because in the latter case they may not have full payment due to disputes regarding discrepancies of the documents even if they have confirmation of the credit.

Incoterms 2010의 FOB와 CFR의 운송조항에 대한 연구

박세운(Sae-Woon Park) 한국무역연구원 2017 무역연구 Vol.13 No.1

The Incoterms 2010 rules were made to provide standard solutions for the division of costs, tasks and risks between the seller and the buyer in relation to any sale of goods. Where the seller and buyer are located in different locations, and the goods will be carried by an independent carrier, it is crucial to understand the full scope of the carrier’s obligations before entering into the contract. Specifically, since the late 1960s, containerization has changed shipping practice. So handing over normally takes place in the carrier’s terminal before the arrival of the ship. Therefore, it seems we can no longer use FOB/CFR/CIF rules for containerized shipments. Nevertheless, in the case where a seller of goods in containers wants to use FOB/CFR/CIF rules, both parties can agree by stipulating this in the contract of sale so that the risk will pass to the buyer when the goods have been handed over at the terminal. The division of costs between the buyer and the seller should also be stipulated sufficiently and accurately because disputes relating to these often arise.

Incoterms 2010의 주요 개정내용 몇 신용장거래에서의 적용상 유의점

박세운(Sae-Woon Park) 한국무역연구원 2011 무역연구 Vol.7 No.3

The relationship between the Incoterms rules and documentary credits concerns the seller’s obligation to deliver documents to the buyer in order to prove that the seller has fulfilled his obligations under the Incoterms rule and the contract of sale and that, consequently, the buyer is obliged to pay him. In this context the parties ensure that the instructions given by the buyer to the issuing bank are fully compatible with the requirements under the contract of sale. First, trade terms are classified into two types such as “can be used for one or multimodal transport whatever the transport means” and “can be used for ocean vessel only” It must be remembered in practice that as in container transport the seller’s physical control ends on the delivery of goods to the carrier, the use of FCA, CPT, or CIP should be encouraged rather than FOB, CFR, or CIF under which the seller’s physical control ends on on-board. Furthermore, there should be check boxes for FCA, CPT, and CLP in L/C application form. Second, where multimodal transport is employed as transportation route, both the contract of sale and documentary credit should contain the provision which requires multimodal transport document instead of ocean B/L. Lastly, the credit must require transport documents which are compatible with the conditions of the contract of sale. F-terms and C-terms of Incoterms are highly encouraged to use in transactions under the documentary credit.

신용장 양도은행의 법적 지위에 관한 연구

박세운(Sae Woon Park) 한국무역연구원 2013 무역연구 Vol.9 No.6

Even where a letter of credit is expressed to be transferable, it does not follow that the first beneficiary is entitled to require that the credit be transferred. Banks do not regard themselves as being obligated to effect a transfer. UCP 600 stipulates that even the issuing bank or the confirming bank is under no obligation to transfer a credit except to the extent and in the manner expressly consented to by that bank. However, U.C.C does not permit the issuing bank or the confirming bank to arbitrarily refuse a request to transfer. The Chinese court ruled that where a transferring bank effects a transfer but omits a required documents, it faces liability if the omission causes failure to present a document that is the basis for the issuing bank to refuse the presentation. Therefore, the transferring bank should be careful not to advise the original credit otherwise. The transferring bank should also check whether the second beneficiary who is abroad is the party subject to sanction or not.

ISBP745에서의 일반원칙과 환어음 개정 사항 연구

박세운(Sae Woon Park) 한국무역연구원 2013 무역연구 Vol.9 No.3

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 its final revision(ISBP745) was completed in April 2013. Major changes of general principles and drafts in ISBP745 include: First, dating is required according to the nature of certificates. Second, when the credit requires that documents be in a certain language, that will control, but if the credit is silent, the documents can be in any language. Third, a document required by a credit that is to cover more than one function may be presented as a single document or a separate documents that appear to fulfil each function.