발행은행과 확인은행의 의무부담에 따른 문제점과 대책에 관한 연구

박원형(Won-Hyung Park),김동윤(Dong-Yoon Kim) 한국무역연구원 2011 무역연구 Vol.7 No.4

The letter of credit is an device for facilitating complex international and domestic business transactions. The issuing bank and applicant are parties to the contract for opening letter of credits where the issuing bank the credit at the request of the applicant. In some cases, the beneficiary of the letter of credit dose not believe the undertaking of the issuing bank. An advanced system for filling this gap is the confirmed letter of credit. Confirmation means a definite undertaking of the confirming bank, in addition to that of the issuing bank, to honour or negotiate a complying presentation and the bank that adds its confirmation to a credit upon the issuing bank’s authorization or request. The confirming bank, which has paid the seller in accordance with the terms of credit, is entitled to reimbursement from the issuing bank and/or the application for the credit. There are many similarities between issuing bank and confirming bank, namely the confirming bank with the issuing bank has the nature which is equal legally. But the issuing bank and the confirming bank has many different point about the duty and right. in addition, regulations fail to explain international trade and current customs of the issuing bank and confirming bank of legal obligation. Therefore, rules can sometimes brings many kinds of problems and actions. The article tries to enhance the parties’ understanding about the banks which have obligation responsibility and also gives consideration to the clear concept of Issuing Bank and Confirming Bank to present the dispute. Its article to study the responsibilities between the issuing bank and confirming bank arising with the documentary credit not only on the basis of theoretical, legitimate but also commercial. The purpose of this article, as setting up measures, is to minimize the dispute between relative parties who use confirmed letter of credit.

신용장거래에서 개설은행과 매입은행의 주의의무와 준거법 –대법원 2011. 1. 27. 선고 2009다10249판결의 평석을 중심으로-

이정원 한국중재학회 2012 중재연구 Vol.22 No.1

Even though there are some discrepancies in detail with the legal characteristic of the issuing bank’s notice to the beneficiary of opening of the letter of credit, article 25 of “the Korean Private International Act(hereunder, ‘KPIA’)” can be applied to the legal relation between the issuing bank and the beneficiary or the negotiating bank. According to article 26 of the KPIA, if there is no agreement between the issuing bank and its opponent party as to the governing law issues, a state’s law which has the closest relationship with the subject case may be applied. In the latter case, given the facts that the issuing bank plays important roles in every phasis of the sale of goods by the letter of credit, a law of place where the issuing bank’s business premises is situated(the lex situs) can be the applicable law. Meanwhile, “the Korean Supreme Court(hereunder ‘KSC’)” held that the beneficiary or the negotiating bank can claim any damages arising due to the refusal or deferred payment of the issuing bank, and the law which governs the above mentioned situation is the same law that is applicable to the legal relation between the issuing bank and the beneficiary or the negotiating bank. The main reason of the KSC’s ruling is that the nature of the legitimate interest rate which is stated in article 3 of “the Act on Special Cases concerning Expedition etc. of Legal Proceeding(hereunder ‘ASCELP’)” is substantial matters, not procedural. Taking into account, however, that the main object of ASCELP lies in expedition of legal proceeding, prompt realization of people’s rights and duties, and prevention of delayed legal proceeding, it is recommendable that ASCELP, instead of the law applicable to the legal relation between the issuing bank and the beneficiary or the negotiating bank, should be applied to the cases in which the malicious debtor’s only and main purpose is delaying the legal proceedings. On the other hand, even if the issuing bank’s duty of examination of the documents which were tendered by the beneficiary or the negotiating bank is restricted to the formality and strict conformity of the documents and not the substantiality of the documents, the issuing bank still has to examine the documents with due diligence that is required to the banks whose main business is sales of documents, not the real goods. In this regard, under the circumstances where the document lacked the regularity and/or the formality on its face because of the forgery of the document and where it was expected that an ordinary banker might have easily found any faults with the document, the issuing bank must compensate any parties for damages when it pays money without due diligence as a banker who engaged in the sales of documents.

조선은행권 발행 제도에 있어서 보증준비의 함의 -국책과 영리의 관계를 중심으로-

조명근 ( Myung Keun Cho ) 고려대학교 민족문화연구원 2013 民族文化硏究 Vol.61 No.-

본 논문의 목적은 조선은행의 발권제도와 영리와의 상관관계를 밝히는데 있다. 조선은행권 발행 제도의 핵심은 일본은행권이 정화준비의 대부분을 차지하고 있는 점이다. 조선은행은 정화준비 부족을 일본 단자시장의 콜과 제한외발행을 통해 해결하고 있었다. 이 방법은 조달 비용이 지출되기 때문에 조선은행에게는 손 실이었다. 따라서 무이자자금으로 은행권을 발행함으로써 수익을 거둘 수 있는 보증준비야말로 조선은행이 가장 선호하는 발행방식이었다. 그런데 보증준비의 한도액은 일본 제국의회에서 결정하였다. 한도 확장은 외부로부터 특별하고 획기적인 계기가 주어지지 않는 한 쉽게 이루어질 수 없는 것이었다. 1911년의 확장 은 강제병합에 따른 조선 재정자금 조달을 위해, 1918년은 조선은행권이 만주에 서 법화로 공인받았던 시기이고, 1937·39년은 중일전쟁 때 군용통화로 사용되었 거나 전비조달 역할을 수행하였기 때문에 확장된 것이다. 조선은행에게 가장 유리한 발행 방식인 보증준비는 일제의 국책 수행을 통해서만 그 한도 확장이 가능 했다. 조선은행에게 있어 국책이란 영리를 보증해주는 가장 강력한 도구였다. 보증준비 발행을 통해 조선은행은 일제 국책수행을 통해 영리를 추구하는 금융기관 임을 확인할 수 있을 것이다. This paper aims to figure out the interrelationship between the Bank of Joseon`s system of note issuance and its profit. The Bank of Joseon`s system of note issue was an elastic limit system with a proportional reserve system and it was the nub of their concern that their gold reserves were mostly taken by Japanese banking industry. Since the Bank of Joseon had difficulties in raising Japanese notes due to the constant trade deficit, it had to fill up the fund shortage with calls in the Japanese call market or solve this problem with an excess issue. Both of these methods were losses for the Bank of Joseon, however, because it had to pay purchasing costs. Therefore, fiduciary issuance, which was profitable entirely by issuing notes with interest-free funds, was the most preferred issuance method by the Bank of Joseon. However, limit of fiduciary issue had to be assessed by the Japanese Imperial Diet. Unless there were external groundbreaking exemptions given, extension of security notes for the Bank of Joseon was not easily considered. One extension in 1911 was for raising its financial funds as Japan`s annexation of Joseon, and another in 1918 was realized when the Bank of Joseon was publicly granted legal tender in Manchuria. From 1937 to 1939, the extension of limit was realized for use as military currency in Sino-Japanese wartime and playing a role in securing wartime expenditure. There were diverse joint methods in issuance of Bank of Joseon notes. Among them, fiduciary issue was the most favorable method for the Bank of Joseon. Fiduciary issue was only able to be extended in carrying out the national policy. Japanese national policy was the most powerful and only way for the Bank of Joseon to guarantee their profits. The Bank of Joseon could make a profit by being an active main participant in carrying out Japanese national policy. In that sense, the bank had a progressive position rather than passive position. This system of fiduciary issue shows clearly that the Bank of Joseon was not merely the colonial central bank but a financial institution which pursued profit through conducting Japanese national policy.

수익자의 일치하는 제시에 따른 개설은행의 의무에 관한 연구

김용일(Yong-il Kim),이경화(Jing-hua Li) 한국국제상학회 2011 國際商學 Vol.26 No.1

The purpose of this paper is to examine the Issuing Bank's Obligations by Complying Presentation of Beneficiary. The contract between the issuing bank and the beneficiary is the central one in a letter of credit transaction. The main obligation in the contract is the issuing bank's promise to pay the beneficiary provided that the documents presented conform to the requirements of the credit. An issuing bank that fails to accept conforming documents or to honour a complying presentation will be in breach of its promise to the beneficiary under the credit. Even in the case where the documents do not comply with the credit, an issuing bank that does not follow the UCP procedure for examination and rejection of documents will have to treat the documents as complying, and therefore a refusal to take up the documents in these circumstances will amount to wrongful dishonour. Ultimately, the options available to a beneficiary who is faced with a bank's refusal of conforming documents under a credit will depend on what has happened to the documents and goods. If the documents are already with the bank, or if they are still in the possession of the beneficiary, ready to be handed over to the bank in exchange for payment, he should be able to claim damages based on the amount of the credit, plus consequential losses, if any. If beneficiary has credit, but for damages based on his actual losses.

제3자명의 신용장거래의 법률관계와 발행은행의 대응방안에 관한 연구

한상현(Sang-Hyun Han) 한국무역연구원 2011 무역연구 Vol.7 No.4

This paper studies the legal relations of concerned parties under Third Party Letter of Credit(L/C) and counter measurement for Issuing Bank The Third party letter of credit is a letter of credit that Applicant and Applicant who appear in letter of credit differ. This is concept that distinguish with mediation and intercession of L/C issuing. Through study finding of above, the counterproposal for issuing bank is as following. First, before opening this letter of credit, issuing bank must thoroughly confirm discernment of transaction and reason. Second, issuing bank should be submitted commission with L/C application form, and must confirm trust availability through way that inquire signature of the commission or seal impression. Third, issuing bank must throughly judge Applicant(A company)’s confidence is party who reimburse finally the amount of L/C. Fourth, in case of opening this L/C, issuing bank must prepare sufficient preventive measure for collection.

A Study on the Relations between Applicant of L/C and Nominated Bank in the Documentary Credit and the Bank Guarantee

Il-gwang Kim(김일광) 한국국제상학회 2019 國際商學 Vol.34 No.2

화환신용장과 은행보증서 방식의 거래에서 발행은행은 수익자 소재지의 환거래은행을 지정은행으로 편입하게 된다. 지정은행은 발행은행의 이행보조자라는 견해에도 불구하고 사안별로 발행의뢰인은 발행은행이 아니라 지정은행을 상대로 법적 주장을 하는 것이 불가능하지 않다. 그러나 우리나라에서는 양자간 관계에 대해 분석한 경우가 거의 없으며, 외국에서도 등한시되고 있는 주제이다. 따라서 본 연구에서는 신용장 발행의뢰인과 지정은행 간의 계약관계를 고찰한 후 주로 독일 의 견해를 중심으로 분석하였다. 은행보증서의 경우 간접보증서와 역보증서에서는 지정은행 편입이 현실적으로 드물기 때문에 본 연구는 직접보증서와 화환신용장에 있어서 발행의뢰인과 지정은행의 관계를 대상으로 하고 있다. 향후 우리나라에서 이와 관련된 문제가 발생할 경우 법적인 대응방안을 제시하였으며, 또한 본 연구의 결과는 관련법 제ㆍ개정에 있어서 기초자료로 활용 될 수 있을 것으로 기대된다. Purpose : The purpose of this study aims to analyses the contract relations between applicant of L/C and nominated bank in the bank guarantee and the documentary credit with the German viewpoint. Research design, data, methodology : This study mainly focuses on literature review. Results : The results of this study can be used as a basis for scholars and researchers who want to study the contract relations between applicant of L/C and nominated bank in the future. Conclusions : Unlike docum entary credit, a bank guarantee is often used as a com plex multi-level guarantees by a combination of indirect guarantees and counter-guarantees, but since it is unrealistically feasible to incorporate nominated banks in indirect guarantees and counter-guarantees. This study explains the relations between applicant and nominated bank for the direct guarantees and documentary credit. Unless you can find any legal relationship between an applicant and a nominated bank, the applicant of the bank guarantee and documentary credit may be harmed by the action of a foreign nominated bank if it is caused by illegal acts of a nominated bank.

Classification of Critical Cloud Computing Security Issues for Banking Organizations : A Cloud Delphi Study

Abdelrafe Elzamly,Burairah Hussin,Abd Samad Hasan Basari 보안공학연구지원센터 2016 International Journal of Grid and Distributed Comp Vol.9 No.8

The aim of this study is to classify critical security issues in cloud banking organizations, according to the cloud service models (CSM), and the cloud deployment models (CDM). We classified and ranked the critical cloud security issues for banking organizations based on secondary and primary data. In this regard the cloud Delphi study is modified into three phases like identifying, analysis, and evaluating security issues. In this study, the samples of 40 panelists were selected from inside and outside Malaysian banking organizations based on their experienced in the banking environment to set the insight of the cloud issues. The study starts with a list of cloud security issues based on secondary data and interview. In addition, we illustrated the level of risk for all the cloud security issues in banking organizations as small, medium, and large risk. We also indicated that the highest risk of “Trusted cloud” in 3rd party (providers) and policies security issues and the highest risk of “Availability and Mobility” in application and program (software) security, etc. The study has been conducted on groups of cloud IT managers and cloud banking developers. As a future work, we will control and mitigate the critical security issues by using artificial intelligence techniques (ANN). A successful classification of critical cloud security issues will greatly improve the probability of cloud banking success rate.

보증신용장거래에서 발행은행의 서류심사기준과 지급의무상의 문제점과 대응책

김동윤(Dong-Yoon Kim) 한국무역연구원 2012 무역연구 Vol.8 No.2

As standby letters of credit are used as surety devices in various global business transactions including sale of goods. Most standby letters of credit only require simple documents such as a default certificate made by beneficiary, there are strong possibility to demand payment wrongfully by beneficiary. In case of such a bad faith demand, the important issue for the issuing bank is whether to honor or dishonor its payment obligation against such a demand. The purpose of this article is to analyze the legal basis and the real case for the issuing bank’s right to examine documents in the standby credit transactions. The UN Convention on Independent Guarantees and Standby Letters of Credit and Uniform Commercial Code stipulate that the issuing bank acting in good faith may dishonor against the beneficiary’s wrongful demand for payment. And in such a case the courts of competent jurisdiction have tendecy to enjoin the issuing bank from honoring when the demand has no conceivable basis, there is material fraud in the standby credit transaction, the act of beneficiary causes the default of applicant or the performance of applicant was prohibited by the applicable law.

금강 하구 어업의 역사성과 현안 및 발전방향

김민영 ( Kim Min-young ) 한국도서(섬)학회 2021 韓國島嶼硏究 Vol.33 No.1

The Geumgang Estuary Bank is seawall established between Gunsan city in Jeonbuk province and Seocheon Gun in Chungnam province for the supply of agricultural & industrial water and for the prevention of floods. Of course, after its opening, this Bank was connected with a national highway and railways for use. However, a criticism of damage on the ecosystem, namely water quality impairment, has been raised from its establishment while it is said that the project of the establishment of this Bank was enforced and promoted because the priority was given to the water supply. It has been 30 years since the establishment of the Bank and there is considerable controversy about the ecosystem, environment, and fisheries. In particular, it is a reality that the interests between the local governments of Chunbuk and Chungnam are sharply divided and one of the issues of these conflicts is the distribution of seawater. In this context, Chungnam province recently has held a series of meetings for the issues including ‘the additional establishment of a “fishway” of the Geumgang Estuary Bank for the eco-friendly development of the Geum River Estuary’. The scopes of those meetings are quite broad including the present condition of the fish inhabitants in both upstream and downstream of the bank, the present condition of use of existing fishway, the necessity of the additional establishment of the fishway and suggestions for the form of fishway. Thus, in this study, conducting a basic examination was planned by focusing on a collection of opinions on the additional establishment from the fishermen and local residents upstream and downstream of the Estuary Bank (Gunsan and Seocheon) as well as basic present conditions of fishing activities in the nearby waters of the Geumgang Estuary Bank carried out up to now. In other words, in this study, time was divided into before and after the establishment of the Bank in 1990 and the historicity of fishing activities and identify basic pending issues of various conflicts surrounding the Geumgang Estuary Bank was examined. Moreover, basic surveys of the fishermen and local residents upstream and downstream were conducted in order to examine their opinions about the additional establishment of the fishway in order to finally make a suggestion on the direction of the development so that the changes in fishing activities before and after establishment of the Bank could be examined, specifically its historicity, the long-lasting conflicts, and other pending issues. In addition, this study may cast a light on the policy on similar facilities of estuary banks and fishways established in the Nakdong River and the Yeongsan River for which improvement directions and solutions are sought. Moreover, this study may make a certain contribution in terms of various considerations on the supply, use, and control of water coupled with historical, cultural, and ecological environmental utilization of water.

한국 자산동결 사건에 대한 비판적 고찰 - 멜라트은행 사건의 비교법적 분석을 중심으로 -

백지열(PAEK, Ji-Yeol) 대한국제법학회 2021 國際法學會論叢 Vol.66 No.3

자산동결에 관한 사건은 유엔 안보리의 자산동결에 관한 제재결의가 기본권을 존중하는 방식으로 이행되었는지 살펴볼 수 있는 소중한 자료이다. 한국의 멜라트은행 사건은 2021년 5월 기준 한국의 유일한 자산동결 관련 판결로서 영국, EU 멜라트은행과 사실관계를 상당 부분 공유한다. 본 논문에서는 이 사건을 영국, EU의 멜라트은행 사건과 비교·분석하여, 비판적으로 고찰하려 한다. 한국의 멜라트은행 사건은 영국, EU의 멜라트은행 사건에 비해 실체적 판단을 충실히하지 않았다. 한국의 멜라트은행 사건에서 멜라트은행의 이란 핵 문제와 관련성을 실체적으로 따지지 않고, 단순히 미국과 유럽연합의 지정만을 논거로 삼았다. 반면 영국, EU의 멜라트은행 사건에서는 여러 증거 등을 검토하여 멜라트은행의 핵 확산과 관련성을 부인하였다. 한국 법원은 앞으로 있을 자산동결 사건에서 실체적 판단을 적극적으로 해야 한다. 이는 자산동결 조치가 잘못된 사실관계에 기초하여 시행되는 상황을 막을 수 있을 것이다. 또한 한국의 멜라트은행 사건은 영국, EU의 멜라트은행 사건과 비교할 때 적법절차의 보장을 엄격하게 심사하지 않았다. 한국의 멜라트은행 사건에서 멜라트은행이 자산동결조치를 당할 때 이유 제시, 청문, 사전통지, 의견청취, 통지 등을 보장받지 못하였음에도 적법절차상 문제가 없다고 보았다. 이는 영국, EU의 멜라트은행 사건에서 청문권, 효과적인 사법 보호를 받을 권리 등의 침해를 이유로 자산동결의 적법절차에 문제가 있다고 판단한 것과 대조된다. 한국 법원은 추후 자산동결 사건에서 적법절차의 보장에 대한 심사를 강화해야 한다. 이는 한국이 자산동결 제재결의를 이행할 때 적법절차를 준수하도록 유도할 것이다. Asset freeze cases provide valuable data for determining whether the UN Security Council’s resolutions on asset freeze were implemented in a way that respects fundamental rights. The court decision in the Bank Mellat case in Korea is the only court ruling on asset freeze in Korea, and the case shares a lot of factual elements with the Bank Mellat cases in the United Kingdom (UK) and the European Union (EU). This study reviews the court decision in the Korean case by comparing it with the court decisions in the Bank Mellat cases in the UK and the EU. The court in the Korean Bank Mellat case did not cover the substantive issues of the case as comprehensively as the UK or EU court. The Korean court did not make a substantial ruling on the connection between Bank Mellat and Iran’s nuclear program, and solely relied on the fact that the bank was listed by the United States (US) and the EU. On the other hand, in the UK and EU cases, the courts denied the connection between Bank Mellat and nuclear proliferation after examining the relevant evidence. In future asset freeze cases, Korean courts need to actively engage in the substantive matters of the cases, which will prevent asset freeze measures taken on erroneous factfinding. In addition, in the Korean Bank Mellat case, the court did not protect the bank’s due process rights as strictly as the UK or EU court. The Korean court did not find any due process violation in the case despite the fact that the bank was not provided with the reasons for the measure, a prior notification, or an opportunity to have a hearing or submit its own opinions. On the other hand, the EU court found the asset freeze procedurally problematic, citing the bank’s right to a hearing and effective judicial protection. In the future, Korean courts need to apply stricter due process tests to asset freeze cases, which will encourage the Korean government to comply with due process when implementing asset freeze resolutions.