[2] Whether the Uniform Customs and Practice for Documentary Credits for the Establishment of International Commercial Conference for Documentary Credits (affirmative)

[3] Whether a deferred payment letter of credit designated as a specific date is eligible for purchase by a designated bank that allows the issuing bank to pay the amount by means of negotiation of shipping documents (affirmative)

[4] The meaning of "purchase" under Article 10 (b) (ii) of the Uniform Customs and Practice for Documentary Credits for the fifth Amendment

[5] The case holding that the issuing bank of the deferred payment letter of credit did not designate or authorize the bank to pay the deferred payment or to negotiate shipping documents

[2] The letter of credit, which is opened by the method for the World Inter-bank for World Inter-bank Financial Telecommunication, is subject to the Uniform Customs and Practice for Documentary Credits in force at the time of its issuance (see the SWIT Use Manual). Even though there is no express provision that the Uniform Customs and Practice for Documentary Credits enacted by the International Commercial Conference on the face of the letter of credit does not apply on the face of the letter of credit, the relevant letter of credit shall be subject to the Uniform Customs and Practice for Documentary Credits in force at the time of its issuance, unless there are other special circumstances.

[3] The purport of Article 10(a), (b)(i), (c), and (d), and Article 14(a) of the Uniform Customs and Practice for Documentary Credits for the authorized bank of the issuing bank (the same applies likewise to the confirming bank) and the purport of Article 10(a)(i), (c), and (d), and Article 14(a) of the Uniform Customs and Practice for Documentary Credits for the purpose of prohibiting the deferred payment of the L/C price or the negotiation of shipping documents by the designated bank under the Uniform Customs and Practice for Documentary Credits, and the fundamental purpose of using the independent and abstract means of payment in international transactions is to eliminate the beneficiary's apprehension of payment, and the risk arising from the independent and abstractness of the L/C applicant's payment is consistent with the principle of fairness. In a case of a deferred payment L/C, where the bank is designated by the method of negotiating shipping documents, the issuing bank's power to the designated bank prior to the maturity of the deferred payment bank's purchase of shipping documents can not be viewed as including the issuing bank's redemption of the L/C.

[4] Article 10 (b) (ii) of the Uniform Customs and Practice for Documentary Credits provides that "purchase" means that a bank authorized to negotiate pays for bills of exchange and/or documents (hereinafter referred to as "documents"). It does not negotiate merely without payment." In light of the purport of the above provision, "purchase" is recognized only where a bank authorized by the issuing bank pays for documents, and in the case of a bank without authorization, "purchase" cannot be recognized as "purchase even if it pays for documents," and this does not change with the deferred payment letter of credit.

[5] The case holding that, in a case where a deferred payment letter of credit was issued, the deferred payment letter of credit did not specifically designate a designated bank for the payment of the amount or for the negotiation of shipping documents, and there was no clear authority for free negotiation on its face to do so, but rather, the bank did not designate or authorize the bank for the payment of the amount or for the negotiation of shipping documents in light of the fact that payment is possible only at the issuing bank, and that the place of presentation of the shipping documents and the reference place for the effective period of the letter of credit also stated as the location where the issuing bank is located

A. The facts established by the evidence and records presented by the court below are as follows.

(1) The SAL JAL JALTX (hereinafter referred to as the "MAL") ordered non-party 1 corporation, a Korean corporation, to issue a letter of credit at the point of 23,00,00 of the 23th,00 capital of the 23th,00 capital of the 2nd, and requested the issuance of the letter of credit at the place of the Defendant bank running lacing from the sales proceeds to pay the US$81,650. At the request of the branch of the Defendant bank running lac, the principal office of the Defendant bank issued the letter of credit on July 7, 1997: 0: 097549/0823, 000, US$81,650, 81,650, 81,650, 81, beneficiary: the applicant for the issuance of the letter of credit: Non-party 1 corporation; the period of validity of the credit; and the date of payment on August 15, 1997.

(2) 한편, 이 사건 신용장은 소위 연지급신용장(Deferred Payment Letter of Credit)으로서 환어음의 발행이 요구되지 않았고, 제41D항에 의하면, '개설은행의 창구에서 연지급방식에 의하여 가능하다(available with…at ours counters by DEF payment).'라고, 제78항에 의하면 '만기에 개설은행은 매입은행의 지시에 따라서 하자 없는 선적서류에 대한 신용장대금 중 97% … 를 지급하겠다(At maturity, as per instructions of the negotiating bank, for 97 percent of value of documents in order only, … will be paid by ourselves).'라고 각 기재되어 있다.

(3) However, the non-party 1 corporation requested the plaintiff to negotiate the documents stipulated in the letter of credit as if the goods were shipped with the same goods as the goods stated in the letter of credit of this case while shipping documents were shipped, and the plaintiff purchased the above documents from the non-party 1 corporation on July 25, 1997 and requested the defendant to accept them at that time. On August 8, 1997, the defendant accepted the above shipping documents as follows: US$ 79,150.50, maturity: October 23, 1997.

(4) After that, on September 17, 1997, the Paris Commercial Court issued a provisional order ordering the Defendant to prohibit the payment of the letter of credit of this case, and in case where it confirmed that it was not liable for the payment of the letter of credit of this case against the non-party 1 corporation, the defendant, and the non-party 1 who mediated the trade of this case and the non-party 1 corporation and claimed compensation for damages caused by the fraudulent preemptive goods of the non-party 1 corporation, the above court rendered a judgment that the sales contract with the non-party 1 corporation was revoked on April 14, 199, and that the request under the letter of credit of this case, which was issued by the non-party 1 corporation and the non-party 1 corporation, shall be invalidated with the false sales act and the forged documents.

B. The court below rejected the plaintiff's claim against the defendant as the negotiating bank of the shipping documents of this case, on the ground that (1) the deferred payment letters, such as the letter of credit of this case, do not have any means of negotiation such as the letter of credit of this case, and (2) it cannot be ruled out at all in specific cases, but the letter of credit of this case is not designated as the negotiating bank in light of its reasoning. Thus, the plaintiff is not in the negotiating bank of this case, but in the status of the transferee of the right to the defendant as the issuing bank against the non-party 1 corporation, the beneficiary, and the defendant can oppose the plaintiff who succeeded to the status of the non-party 1 corporation by any reason against the non-party 1 corporation.

2. Judgment on the grounds of appeal

A. Even if the documentary credit transaction is found to be a fraudulent transaction due to the forgery, etc. of shipping documents after the lawful negotiation of the documentary credit, the negotiating bank can seek reimbursement of the documentary credit amount against the issuing bank unless it is found that the bank was involved in the fraudulent act, such as the forgery, or was aware of or had sufficient reasons to suspect the fraudulent act, such as the forged document, at the time of the negotiation (see Supreme Court Decisions 96Da43713, Aug. 29, 1997; 96Da37879, Aug. 29, 1997; 2000Da60296, Oct. 11, 2002; 200Da60296, Oct. 11, 2002). If the negotiating bank's negotiation by the bank is not a legitimate negotiation, it can not be an issuing bank under the Uniform Customs and Practice for Documentary Credits even if it paid the price, and it can be asserted that the beneficiary's act can oppose the beneficiary's documentary credit transaction.

Therefore, the key issue of this case is whether the negotiation of the credit of this case by the plaintiff is recognized as a negotiation under the Uniform Customs and Practice for Documentary Credits.

B. Uniform Customs and Practice for Documentary Credits applicable to the instant case

Inasmuch as the Uniform Customs and Practice for Documentary Credits, which is in force at the time of the issuance, is applicable to the letter of credit opened by the method of SIFT (i.e., SWIFT use manual, 154, 156, 161), even though there is no express provision that the Uniform Customs and Practice for Documentary Credits established by the International Commercial Conference on the face of the letter of credit applies to the letter of credit, the relevant letter of credit shall be subject to the Uniform Customs and Practice for Documentary Credits, which is in force at the time of the issuance of the letter of credit, unless there are other special circumstances.

According to the whole purport of evidence and oral argument presented by the court below, although the letter of credit in this case does not provide that the contents of the letter of credit shall apply on its face, it can be known that the contents of the letter of credit have been transmitted by item according to the SIFT method. Thus, the legal relation of the above letter of credit is governed by the 5th Amendment of the Uniform Customs and Practice for Documentary Credits ("UCP") in force at the time of its issuance.

On the other hand, when a letter of credit is issued by SWIT method, the issuing bank will transmit the number and designation of each item designated by the above method in accordance with the contents of the letter of credit (see the above use manual).

(c) Possibility of purchasing deferred payment letters of credit;

(1) Article 10(a) of the Uniform Customs and Practice for Documentary Credits " shall clearly indicate which type of credit is to be used as a deferred payment, deferred payment, acceptance or negotiation." Article 10(b)(i) of the Uniform Customs and Practice for Documentary Credits must designate all banks authorized to make payments, deferred payment arrangements, accept or negotiate bills ("designated Bank", unless the Credit stipulates that it is useful only at the issuing bank. All banks shall become designated banks. Documents shall be presented to the issuing bank or confirming bank (if any) or nominated bank, unless the nominated bank has designated the bank, the nominated bank shall not be bound to execute the deferred payment arrangements, acceptance or negotiation of bills, or to accept or negotiate bills in any other bank, or shall meet the terms and conditions of the nominated bank's undertaking to accept or negotiate bills, and if so, the nominated bank shall be able to accept or negotiate bills in accordance with the provisions of the Uniform Customs and Practice for Documentary Credits."

(2) In light of the purport of the above Uniform Customs and Practice for Documentary Credits (the same applies to the confirming bank; hereinafter the same shall apply) and the purport of the above UCP on the authority to accept and repay the designated bank of the issuing bank (the issuing bank) and the fact that there is no provision prohibiting the bank from negotiating shipping documents prior to maturity of the deferred payment letter of credit payment or from purchasing shipping documents by the nominated bank under the Uniform Customs and Practice for Documentary Credits, and the fundamental purpose of using the independent and abstract payment method of the credit in international transactions is to eliminate the beneficiary's uncertainty in payment, and the risk arising from its independence and abstractness is consistent with the principle of fairness, even in case of the deferred payment letter of credit for which the opening bank is designated as a specific date, the issuing bank's authority to accept the above designated bank of the issuing bank shall be deemed to include the purport that the issuing bank would redeem the shipping documents at maturity even if the designated bank purchases the shipping documents before maturity of the deferred payment letter of credit payment (However, the issuing bank may refuse the payment prior to maturity of the credit payment).

(3) Therefore, the court below's determination that a deferred payment letter of credit cannot, in principle, be subject to the negotiation of another bank, not the issuing bank, is erroneous. However, as follows, since the negotiation of the letter of credit of this case by the issuing bank cannot be acknowledged as legitimate negotiation, the above error cannot affect the conclusion of the judgment.

D. Whether the Plaintiff bank is a designated bank for the negotiation of the instant credit

(1) Article 10(b)ii of the Uniform Customs and Practice for Documentary Credits provides that "purchase" means that a bank authorized to negotiate pays for bills of exchange and/or documents (hereinafter referred to as "documents"). It does not negotiate merely without paying the price." In light of the purport of the above provision, a bank authorized by the issuing bank is recognized as a "purchase" only when the bank has paid the price for the documents, and in the case of a bank without authorization, the "purchase" cannot be recognized as "purchase even if the bank has paid the price for the documents," and this does not change with the deferred payment letters of credit.

(2) In this case, according to the above facts, the credit of this case does not specifically designate a designated bank for the payment of the price or for the negotiation of shipping documents, and there is no clear authority for the free purchase on its face, while the payment of the price is possible only at the issuing bank (41D : 41D ; 41D ; 41D ; Paris ; the place where the shipping documents are presented and the place where the issuing bank is located. Thus, it is reasonable to view that the payment of the price or the designation or authorization by the issuing bank for the negotiation of shipping documents was not made with respect to the credit of this case.

As pointed out by the Plaintiff, i.e., demanding the issuance of an insurance policy that may be transferred under Article 46A of the instant Credit, i.e., that the issuing bank pays 97% of the letter of credit amount on the defective shipping documents according to the direction of the negotiating bank.” The Defendant bank uses the term "Acet" when receiving the documents related to the instant Credit and notifying the receipt thereof. Thus, it cannot be deemed that the issuing bank has a clear authority in light of the text of the Credit as mentioned above.

In the same purport, the judgment of the court below which denied the right to receive the payment prior to maturity of the letter of credit of this case is just, and the ground of appeal on this point is

E. As to other grounds of appeal

(1) The court below rejected the plaintiff's assertion that the shipping documents presented should be interpreted to the extent that they were accepted in compliance with the conditions of the letter of credit, and it constitutes an expression of intent to pay the price at maturity under the Uniform Customs and Practice for Documentary Credits, even though the defendant used the terms of accepting documents related to the letter of credit from the plaintiff when considering that the letter of credit in this case is a deferred payment letter of credit. In light of the records, the judgment of the court below is just, and there is no error in the misapprehension of legal principles as to the concept of acceptance under the Uniform Customs and Practice for Documentary Credits as asserted by the plaintiff.

(2) In addition, the court below rejected the plaintiff's assertion that the payment on the letter of credit cannot be refused unless the defendant did not notify the rejection of the documents within the period stipulated in Article 14 of the Uniform Customs and Practice for Documentary Credits, even if the defendant received the shipping documents and did not notify the rejection of the documents within the period stipulated in the above Uniform Customs and Practice for Documentary Credits. Such determination by the court below is just, and there is no error in the misapprehension of legal principles as to Article 14 of the Uniform Customs and Practice for Documentary

(3) Lastly, with respect to the plaintiff's assertion that the defendant gave up his right to defense against the plaintiff by accepting it without raising any objection against the plaintiff's notification of the purchase of the letter of credit and promising the payment of the price, and in light of such circumstances, the court below held that the above ground alleged by the plaintiff alone does not lead to the defendant's waiver of his right to defense against the plaintiff or the defendant's obligation to pay the price under the good faith principle. The above judgment of the court below is just, and it does not err in the misapprehension of legal principles as to the letter of credit and international trade practice, as alleged by the plaintiff

3. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-dam (Presiding Justice)