UCP 600상 상당일치론의 적용에 관한 연구

강호경(Kang, Ho Kyung),임목삼(Lim, Mok Sam) 한국무역상무학회 2009 貿易商務硏究 Vol.41 No.-

L/C transaction, the most important issue for the seller and the buyer is the theory of documentary transaction and the theory of strict compliance which are the principles of L/C transactions. According to the leading cases in England and America where the practice of L/C transactions was created and developed, the descriptions of the commodities specified on all the documents which are submitted based on an L/C, should be identical to the descriptions of commodities specified in the L/C. And further, many leading cases of L/C continuously repeat to emphasize strict compliance. However, the recent leading cases in and out of the country show that the principle of strict compliance is being weakened. The leading cases in America show two trends of weakening the principle of strict compliance. That is, on the contrary to strict compliance, tends to apply substantial compliance (which puts more value on the substance of the documents). These leading cases reflect the attitudes of the judicial and the legislative authorization that don't want to approve formal approach to the commercial law. Recently, the Supreme Court of Korea is giving a decision on the principle of strict compliance, “The documents attached to an L/C should strictly comply with the conditions in the L/C, but it doesn't mean that they should be perfectly identical without any mistake in words. In case the bank can understand through reasonable care that a small mistake in words is too trivial to give different meaning or to give damage to the conditions of the L/C, the documents are regarded to comply with the conditions of the L/C. However, the judgment should be based on whether the difference between the documents and the L/C can be admitted by the international standard bank transaction practice or not." This decision tells that the principle of strict compliance is quite much modified so application of this modification can't be ignored. However, from the viewpoint of the party who requests to open an L/C, there is a criticism that a bank's arbitrary judgement can be involved. Therefore, reviewing the original purpose of L/C transactions (activating international transactions), the principle of strict compliance may be thought old-fashioned because it emphasizes a form, but in reality, for prompt transaction and payment, the principle of strict compliance should be observed in L/C transactions. And further, if a legislative device is prepared to systematically compensate for several side-effects, the principle of strict compliance will improve dynamic flow of prompt and low-costly L/C transactions. On the other hand, it will be able to protect the interested parties.

신용장거래에서 서류심사의 엄밀일치원칙에 관한 재고찰

김철수(Cheol soo Kim) 한국국제상학회 2016 國際商學 Vol.31 No.2

본 연구는 엄밀일치원칙의 본질을 정립하고 엄밀일치원칙의 운영규정을 살펴보고 영미법상 적용되고 있는 엄밀일치원칙을 UCP 600과 비교 ․ 검토하여 심도있게 평가하고자 한다. 이러한 평가를 통해 UCP 600과 ISBP와의 일치성이라는 측면에서 비교검토하고자 한다. 특히 계약당사자의 의도가 신용장의 서류일치성을 검토하는데 중요한 요소로 판단할 수 있는지 여부를 살펴보고자 한다. 다만 신용장의 활용이라는 측면에서 기존에 많은 연구들이 신용장의 서류검토와 관련하여 엄밀일치와 상당일치에 대한 비교가 많이 있어왔다는 측면에서 본 연구의 내용이 신용장의 서류검토에 대한 업무를 가중시키는 부분이 있지만 무역계약에서 당사자의 자치라는 부분을 은행이 무시할 수 있는지에 대한 여부를 검토하는 것은 중요한 의미를 가진다고 판 단된다. Purpose : The purpose is to identify the nature of the principle of strict compliance and the generated rules of such a principle. It critically evaluates the generated rules from the principle of strict compliance, in the light of their consistency with the UCP 600. Research design, data, methodology : This paper reviewed and analyzed strict compliance of UCP 600 and relating generated laws. It provides analyses as to the scope of the principle of strict compliance. Results : According to this paper, The pure compliance’s matters need to be determined by the practices of the market such as Identification of the Goods and freedom to contract Conclusions : This paper is the general rule for “Identification of the Goods”. It is evaluated that the identification of the goods in the presented documents must substantively prevail. The attempt to decline its applicability by enforcing a contrast rule in UCP 600 is an illustration of a failure to reflect the underlying policy of documentary credits. “Non-Documentary Conditions are Effective and the UCP must not be repugnant as to transnational fundamental norms such as “freedom to contract”.

The Duty of Banks to Examine the Documents of Letters of Credit in View of Korean Courts

김용의 강원대학교 비교법학연구소 2017 江原法學 Vol.50 No.-

In Korea, the rules of The Uniform Customs and Practice for Documentary Credits including the most recent 2006 Revision (“UCP”) have been the governing rules on the issues of the letters of credit for a long time though they are not statutory rules in Korea. Therefore it is worthy of finding how Korean courts interpret and apply the rules of UCP reviewing their decisions. This article focused on how Korean courts interpret and apply the rules regarding the banks‘ duty to examine the documents in terms of the credit and the scope of this duty. Regarding the standard of care to be exercised by the banks in examining the credit documents, the banks are viewed to have the duty of reasonable care according to the provisions in the UCP600. According to the Korean Supreme Court’s interpretation of the scope of the reasonable care, the care is the opposite concept of the negligence and the lack or disregard of care constitutes negligence. However the reasonable care is not viewed the one as to be determined generally or commonly but is such one as is expected from a reasonable person under the specific circumstances at issue. This article reviewed what factors are to be considered in finding if the banks exercised such reasonable care as are described by the Court. Recently, the Court characterized the legal nature of the issuing bank’s duty to pay on the letter of credit as a contractual relationship unlike the traditional view that the nature of the credit is a unilateral conduct of the bank. Following this new view, the standard will also be the reasonableness under the circumstances only except that the contract requires special care or higher standard of care either by its own terms or its nature. If a foreign contract law becomes the governing law on the credit according to the choice of law rules in Korea, the standard of care may be decided by the foreign law. There is another important issue as to the bank’s reasonable care arising out of the so-called “substantial compliance doctrine” which can expand the bank’s duty wider than the traditional “strict compliance doctrine” in examining the documents because the Court adopted the “substantial compliance doctrine” allowing some exceptions to the principle of the strict compliance. Under this doctrine, the banks should take reasonable care to examine the documents to decid if they honor the documents though there is some discrepancy between the documents and the letter of credit. Another related issue is how to view the bank’s scope of reasonable care when the documents are perfectly complying with the letter of credit on its face but there is fraud in the documents. To what extent, is the bank responsible to find the fraud? To find the answers to these issues, this article selected and reviewed several relevant cases and summarized the key facts with which the Court found the banks’ duty of reasonable care to examine the documents in credit transactions.

What Should be the Limitaions of the Doctrine of Strict Compliance?

( Ji In Kang ) 고려대학교 법학연구원 2008 The Asian Business Lawyer Vol.1 No.0

브라질 부패방지법과 기업책임

조희문 한국 포르투갈-브라질 학회 2015 포르투갈-브라질 연구 Vol.12 No.2

The Anti-Corruption Law (Law no.12.846/2013), known as Clean Company Law, which was published on August 1, 2013, entered into force on January 29, 2014. With Anti-corruption Law Brazil has completed the system for prevention and punishment of corrupted civil servants, called legal defense system of morality. To date, crimes against the public administration are governed by Law No. 8.429/1992 (Law to Combat against Administrative Misconduct), the Law on Procurement and Administrative Contracts (Law no. 8.666/1993), the Competition Law (law no. 12.529/2011), the Clean Record Law (Complementary Law no.135/2010) and the Penal code, The Law No. 12.846/2013 enables to ask the responsibility of companies that are leading causers of corruption in public administration. The Law introduced the rule of strict responsibility of the companies involved in acts of corruption without the necessity of proving willful misconduct of the company directors. The Law also introduced the severe administrative and civil sanctions. Furthermore, the leniency system and the National Registry of Companies punished(CNEP) were introduced. With the advent of anti-corruption law companies operating in Brazil, especially those who have contact with the public administration must undergo to adapt to the new rules with the change of the corporate culture such as the development of the compliance program. A Lei Anticorrupção (12.846/2013), conhecida como Lei Empresa Limpa, que foi publicada em 1.8.2013, entrou em vigor no dia 29 de janeiro de 2014. Com a Lei de Anticorrupção o Brasil completou o sistema para a prevenção e a penalização das corrupções dos funcionários públicos, denominado sistema legal de defesa da moralidade. Até hoje, os crimes contra a Administração Pública são disciplinados pela Lei nº 8.429/1992 (Lei de combate à improbidade administrativa), a Lei de Licitações e Contratos Administrativos (Lei no. 8.666/1993), a Lei de de Defesa da Concorrencia (Lei no. 12.529/2011), a Lei da Ficha Limpa (Lei Complementar no.135/2010) e o Código Penal, A Lei nº 12.846/2013 possibilita a responsabilização das empresas que são principais causadoras de corrupção a Administração Pública. A Lei introduziu a regra de responsabilização objetiva das empresas envolvidas por atos de corrupção sem a necessidade de comprovação de dolo dos dirigentes das empresas. A Lei introduziu tambem as fortes sanções administrativa e civil. Alis, foram introduzidos o sistema de Leniencia e o Cadastro Nacional de Empresas Punidas (CNEP). Com o advento da Lei de Anticorrupção as empresas que atuam no Brasil, principalmente aquelas que tem o contato com a Administração Pública devem sofrer para adaptar as novas regras com a alteração da cultura empresarial tal como o desenvolvimento de programa de compliance.

Compliance Rules in Documentary Credit Transactions

Sun-Ok Kim 한국무역연구원 2015 貿易 硏究 Vol.11 No.5

The purpose of this paper is to review compliance rules in transactions involving documentary letters of credit. The principle of strict compliance used in most banks (as a tool to determine whether or not discrepant factors exist) has shown a tendency to take a pragmatic approach considering the functions of the commercial credit and the essential features of the compliance rules in letters of credit, as well as the necessary guidance that ISBP 745 gives to identify these matters. Understanding the criteria in checking the documents presented may reduce refusal rates of those documents on presentation.

신용장거래에서 서류심사기준과 그 쟁점

김선옥(Sun-ok Kim),곽영식(Young S. Kwak) 한국무역연구원 2014 무역연구 Vol.10 No.4

This article addresses issues pertaining to the evaluation of documents produced by the beneficiary in conformance to the terms of the letter of credit, using a strict compliance standard. After a historical development of strict compliance cases was presented and reviewed, this pater resented trends in the application of strict compliance standards based on international standard banking practices.

국제물품매매계약에서의 교부서류에 대한 엄격일치원칙의 적용가능성 연구

박남규(Park, Nam Kyu) 한국무역상무학회 2011 貿易商務硏究 Vol.51 No.-

International transactions have the threat of non-payment by the buyer or non-performance by the seller. Parties tend to search for additional means of securing performance and payment beyond the mere agreement in the contract. Such security may be achieved by means of a letter of credit. When contracting parties have agreed to pay by means of a letter of credit, the buyer’s bank takes upon itself the obligation to pay the purchase price when the seller tenders the documents that are stipulated in the letter of credit. The documents must comply strictly with the terms of the credit.. The documents play a crucial role in letter of credit transaction. The principles of abstraction, separability and strict compliance governing the letter of credit transaction are considered. The concept of fundamental breach of Article 25 CISG was discussed. This article examines whether a failure to deliver documents conforming to the terms of the letter of credit can constitute a fundamental breach of the sales contract as defined by Article 25 of the CISG by the seller and thereby enable the buyer to avoid the contract. For letter of credit transactions it should be accepted that the delivery of non-performing documents constitutes a fundamental breach, if the result of this breach is that the bank refuses to pay the price for the goods. On the other hand, in the interpretation of Article 25 CISG, it should be noted that if the parties have agreed to payment by means of a letter of credit, they have simultaneously agreed to apply the strict compliance principle to the delivery of documents in the sales contract. Finally the parties should ensure that inconsistency between the requirements under the documentary credit and the requirements under the contract of sale is avoided, since the buyer may be in breach of his payment obligation if the seller cannot get paid under the documentary credit when his documents conform with the contract of sale.

DOCUMENTARY LETTERS OF CREDIT, PRINCIPLE OF STRICT COMPLIANCE AND RISK OF DOCUMENTARY DISCREPANCY

( Hamed Alavi ) 고려대학교 법학연구원 2016 Korea University Law Review Vol.19 No.-

Documentary Letters of Credit are considered as life blood of international trade. Their importance becomes evident when two businessmen from different parts of the globe who have no knowledge about each other’s financial and business history deicide to do trade together. In such an occasion, Documentary Letters of Credit facilitate the trade process by shifting commercial risk of non-payment from importer to irrevocable promise of payment by a bank under the condition of presenting complying documents required in LC by exporter. However, some researches indicate that more than 70 percent of presentations of exporter beneficiaries are dishonored by banks due to documentary discrepancy. Corner stone to current paper is Principle of Strict Compliance in LC operation which is regulated under article 14 of Uniform Customs and Practices for Documentary Letters of Credits published by ICC (latest version is UCP 600). In analyzing the legal character of Principle of Strict Compliance, paper will try to answer the question of: (i) What are standards of compliance in decisions of English, American and South Korean courts in determining discrepancy of presented documents to bank? (ii) How different are these standards and what are main types of documentary discrepancy in international LC transaction?

Compliance Rules in Documentary Credit Transactions

김선옥 한국무역연구원 2015 무역연구 Vol.11 No.5

The purpose of this paper is to review compliance rules in transactions involving documentary letters of credit. The principle of strict compliance used in most banks (as a tool to determine whether or not discrepant factors exist) has shown a tendency to take a pragmatic approach considering the functions of the commercial credit and the essential features of the compliance rules in letters of credit, as well as the necessary guidance that ISBP 745 gives to identify these matters. Understanding the criteria in checking the documents presented may reduce refusal rates of those documents on presentation.